Serving divorce papers when you cannot locate your spouse.

There are many things about divorce that are difficult, but starting the process shouldn’t be one of them. In order for the legal action to proceed, you need to be able to prove to the court that you have properly notified your spouse about the divorce filing – this is called “service of process.” Sometimes spouses are willing to cooperatively accept service of a divorce complaint and other relevant court documents that set the divorce litigation process in motion, but what do you do when you can’t serve divorce papers, or even locate your spouse?

Service of Process in Divorce Matters

Service of process must be performed by someone who is not a party to the litigation — meaning not a participant in the marriage, is over the age of eighteen (18) years and will sign a legal document, called an affidavit, swearing that the other party was served with the lawsuit.

Service of process is important because a lawsuit, including a divorce or child custody action, permanently impacts and affects the other party’s legal rights and obligations. For litigation to move forward, everyone must be given the opportunity to answer court filings and to appear at scheduled hearings in the matter.

Typically, once someone is served, the party served with the lawsuit (generally called the defendant) files an answer (a response) to the lawsuit, or they fail to answer the lawsuit within the specified time.

  • If the defendant answers the lawsuit, they provide the court and the plaintiff with their current contact information, and the litigation proceeds in the ordinary course.
  • If the defendant fails to answer the lawsuit, the plaintiff may be able to obtain a default judgment (similar to the concept of forfeit) because they have given the defendant proper notice of the lawsuit. If a default judgment is granted, the plaintiff can now move ahead with the litigation without the defendant’s participation.

However, if you are unable to serve divorce papers upon your spouse, you are stuck in limbo. You have only a limited amount of time after filing for divorce to serve the complaint upon the defendant. If your divorce is filed but not served, you must either request an extension of time from the court to continue trying to serve the divorce papers, or the lawsuit will eventually be dismissed and you will have to refile it and begin the entire process anew. Thus, it is essential to your litigation process to have your lawsuit served upon the other party – but what can you do if the other party is making that difficult or you simply cannot find where the other party is located?

How Can You Divorce Someone You Can’t Find?

Hire a Professional to Serve Divorce Papers

As mentioned, you may be unable to directly serve divorce papers upon your spouse either because you can’t locate your spouse, or because your spouse is deliberately avoiding service of process. So it is important to use a professional process server to serve divorce papers, even if you may think having friends or colleagues to effectuate service of process is more economical.

A professional process server has experience serving reluctant defendants, and more importantly, knows how to do so in a way that meets legal requirements. Once service is achieved, the professional process server will then provide you with documentation that can be filed with the court to show that the defendant has been served.

If a professional process server is unable to effectively serve your spouse, the process server will document their service attempts, including time and place of attempts and any other relevant information pertaining to the inability to serve the divorce papers. You will need this detailed information and documentation if you must later ask the court to allow you to use an alternate method of service, such as publication.

Depending upon the individual circumstances, you may want to hire a private investigator to try to locate your spouse (and as a bonus most private investigators are also professional process servers). As a practical matter, if you have any reason to believe your spouse could be deceased, you should also check the Social Security death index.

Service by Publication When You Can’t Serve Divorce Papers

Service by publication involves posting notice of the divorce filing in a newspaper once a week, for several weeks, and/or posting official notice in the courthouse. If you serve your spouse by publication, it is not necessary to prove that they actually saw the notice, but remember, the court has to first approve your request to serve by means of publication rather than serving your spouse directly.

Depending upon where you live, there may be certain additional measures you must take to attempt to find and serve your spouse with divorce papers. Maryland requires you to make reasonable and good faith efforts to find a defendant before it will allow service by means of publication. These efforts may include:

  • Trying to serve your spouse at their last known address by certified mail
  • Searching for them online and in phone directories
  • Writing to their family and friends for information
  • Writing to their last known employer
  • Conducting a search of the Motor Vehicles Administration
  • Inquiring with agencies, such as the military or the prison system, that might know of your spouse’s whereabouts

In the District of Columbia, it is also required that you show that you have made diligent efforts to find your spouse in order to provide proper notice of the divorce action. In other words, the court needs to be convinced that you are not trying to deprive your spouse of due process by not giving them proper notice of the lawsuit.

How to Divorce a Missing Spouse

If you don’t know where your spouse is, you will need to show the court that you made diligent efforts to locate them before asking the court for permission to proceed with your case without personally serving divorce papers.

File a Motion for Alternate Service

Despite your best efforts, and the best efforts of any professionals working on your behalf, you may be genuinely unable to locate your spouse to serve divorce papers. As previously discussed, it is important that you be able to document all steps taken to locate your missing spouse in order to serve them. If you need to serve by alternative means in Maryland, you will need to file a Motion for Alternate Service, including an affidavit describing your detailed efforts to effectuate personal service.

The more detailed and specific your affidavit, the more likely that your request for alternative service will be granted. Once the court is persuaded that you have made every reasonable effort to locate and serve your missing spouse, it will likely permit you to serve your spouse by means of publication.

Order of Default in Divorce

Typically, if someone has left the area where their spouse resides, or is actively trying to avoid service of process, they will still not file an answer to the divorce complaint after being served by publication. Once you have filed proof of service (by publication or otherwise), the divorce clock starts ticking. If your spouse does not file an answer to your divorce complaint with the court within the required timeframe, you can then request the court to grant an Order of Default allowing you to proceed with the divorce without your spouse’s participation.

Strickler, Platnick & Hatfield: Attorneys for Complex Divorce Matters

Trying to divorce a missing spouse adds another layer of complexity to the already difficult process, so having a seasoned professional in your corner is critical. If you have further questions about how to serve divorce papers when you can’t locate your spouse, please contact Strickler, Platnick & Hatfield to schedule a consultation.

Categories: Divorce