Divorcing An Absent Spouse

Divorcing An Absent SpouseIt can be hard enough to come to an agreement with your spouse that it’s time to end the marriage, but what if your spouse skipped town, and you have no idea where they might be? If you’re ready to move on with your life after that marriage, but can’t find your spouse, you can still file for a divorce, but ultimately serve them by publication.

For many years in Illinois, you needed to prove your spouse was at fault for causing the dissolution of your marriage if you wanted to succeed in securing a divorce. You needed to provide evidence that they had committed adultery, were abusive, abandoned you, and/or was habitually drunk, etc. Some time ago, Illinois adopted a no-fault divorce option in which people listed “irreconcilable differences” as their reason for divorce. It’s known as the no-fault option because it does not blame either spouse for the dissolution of the marriage, but merely recognizes that the two parties have reached a point where maintaining the marriage is no longer possible or desirable. Prior to 2016, a petitioning party had to be separated from their spouse for two (2) years before a Judgment could be entered, unless both parties had signed a written acknowledgment that they had been separated for at least six (6) months and were agreeing to waive the 2-year separation requirement.

In 2016, Illinois became a true “No Fault” state when it eliminated all grounds for divorce except for irreconcilable differences. Further, under the current law, you only have to show that you have been living separate and apart from your spouse for six (6) months immediately prior to the entry of a Judgment for Dissolution. Such a showing creates an irrebuttable presumption that irreconcilable differences have arisen in the marriage, and you can seek a divorce much sooner than the old law.

So, how does this change in the law affect how and when you can file for divorce if your spouse is nowhere to be found?   Now, you can file for divorce against an absent spouse and you only have to show that you’ve been separated for six (6) months before requesting the Court enter a Judgment for Dissolution against your spouse on a “default” basis. But, some things have to be shown to the Court before they will default your spouse, as explained below.

Once you file your Petition for Dissolution, you have to actually serve your spouse with the Petition before the Court can proceed with any default proceedings. It is important to note as well that marriage and divorce laws vary from state to state, so be sure to familiarize yourself with the requirements for filing a Petition for Dissolution and also with your State’s laws on service of process, including specifically on what is called “service by publication.” There’s usually a minimum amount of time you and your spouse must have been living apart before you can file for divorce, and you must also be able to prove that you preformed “due diligence” in trying to locate your spouse but were still unable to find them for purposes of serving them personally. It is important to also speak with an attorney before assuming you can or should serve someone by publication, as there may be other methods of “personal service” that are still available to you even if you do not have a known residential address for your spouse.

The requirements for due diligence also vary from state to state, but service by publication generally requires you to publish a notice that you are seeking divorce from your spouse in all the newspapers published in the area in which they were last known to reside. If, after a specified amount of time, the spouse does not respond to your notices, you can submit proof to the court that you performed due diligence in trying to find your spouse and to notify them of your intention to divorce them. Such proof will usually include a copy of the publication of your notice with the motion you file with the Court to request that the Judge find that you successfully served your spouse via publication.

Once service by publication is established, the court can then set the case for a final hearing and issue a divorce, even in the absence of your spouse. If you are truly unable to locate your spouse, the court does have the ability to enter orders for all aspects of the dissolution of the marriage, including division of property and assignment of debts. The Court may also enter default orders relating to parenting time and parental decision-making (formerly known as “custody”). However, in many jurisdictions, the Court may be more reluctant to enter default orders relating to child issues depending on the circumstances, so it is important to speak with an attorney who regularly practices in the jurisdiction you live to determine whether a default order is likely in your case.

While the Courts do not require that you have an attorney to serve your spouse via publication and/or seek a Judgment for Dissolution by default, it’s always recommended to have a knowledgeable legal professional help you through the process. There are a lot of forms to fill out, many of which are full of legal jargon, and you don’t want to miss any necessary steps by accident. A competent family and divorce attorney can help facilitate the divorce process for you as quickly and painlessly as possible, while making sure you get everything you need.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests.