Divorce By Publication

 Posted on December 03, 2014 in Divorce

If you need to end your marriage but cannot locate your spouse, a divorce by publication may be the answer.

In order for any court to act, it must have jurisdiction over both the case and the parties. In Illinois family court, a judge has jurisdiction over a divorce if the couple was legally married and at least one spouse resides in the state. The court must also have personal jurisdiction.

Typically, this means each party has filed a written document with the court or has formally waived service of citation.

Substitute Service

It is not at all unusual for a person to relocate to another address without leaving any contact information, even if the person has a spouse. A divorce can still be granted in these situations, at least under some circumstances.

To obtain service by publication, the respondent’s current whereabouts must be unknown and the petitioner must have been "diligent" when trying to find the missing spouse. While the petitioner does not need to hire a private investigator or go to great lengths to find a missing spouse, the court does require some concerted effort:

• Statements from friends and relatives that they do not know the person’s whereabouts,
• A cursory Internet search, and
• A public records search, such as property ownership.

Most of all, the petitioners must complete an affidavit swearing they have searched diligently for the respondent but the search was unsuccessful. The judge will then allow service by publication in a local newspaper or other approved publication. If the missing spouse fails to respond, the petitioner may be granted a divorce by default.

Effect of Substitute Service

The judge can grant a divorce based on substitute service, but not make any orders concerning property division, child custody or child support. The majority of absentee spouse cases do not involve children or property, so this limitation may not be an issue.

In other words, you will be able to marry someone else but you may have no recourse if your ex-spouse suddenly shows up at your child’s school or sells marital property. In these situations, speak to an attorney straightaway.