What Is Divorce By Publication?

 Posted on September 25, 2017 in Divorce

Most of the time, when two people want to get divorced, they simply inform the other person by having a copy of the papers served upon them, usually by hand delivery. However, there are some very rare situations when the spouse cannot be located. When that happens, a suitable alternative must be found. The answer in Illinois and many other states is called divorce by publication.

A “Good Faith Search”

In all cases, your soon-to-be-ex-spouse must be informed of your desire and intention to file for divorce. However, if they have moved or are trying to avoid you and have left no forwarding address, the normal methods of mail or hand delivery are impossible. Yet it is contradictory to public policy to demand that two people remain married when they are not even living together and all communication has broken down. Publication is generally the best possible chance for your information to reach your absent spouse.

In order to serve notice on your spouse by publication, the first step is to perform a “good faith” effort to locate your spouse the normal way. “Good faith” differs between judges, as there is no set requirement for what constitutes a good-faith search. Generally, it is held to mean telephoning and otherwise contacting friends, co-workers, family, even acquaintances or people once lost touch with, as well as checking the local registry of voters and tax offices. Once you have made reasonable efforts, you may present evidence of your searching in the form of an affidavit, usually referred to as an Affidavit of Diligent Search. Without this, a judge will not permit you to serve your spouse any other way than by personal service (hand delivery or mail).

Placing the Notice

Illinois law dictates that after you have submitted the affidavit, you then file your divorce petition with the appropriate court as normal. When it is filed, it will also be published—some courts will do it for you while others make you do it yourself—in a newspaper in the appropriate locale. The Illinois Marriage and Dissolution of Marriage Act clarifies that it should be in a municipality “in a county with a population under [two million].” This specification ensures that your petition has the best possible chance of being seen, either by your spouse or someone who knows your spouse.

By placing the divorce announcement in the newspaper, you have officially begun the divorce proceeding. The respondent (your spouse) will have a set amount of time, usually 10 days, to respond to the pleading, and if they do not, it may proceed as an uncontested default.

Be advised that if your proceeding is handled as an uncontested default, all the court may legally do is declare you divorced. Normal questions such as child custody, alimony and property division will be placed in reserve, but without the appearance of your spouse, they may never leave “reserved” status. This may cause problems down the road.

Contact a Divorce Attorney

Most of the time, divorce cases can be handled in the normal manner, even when spouses move. Publication is a rare occurrence, but if it happens to you, you need a legal professional who knows what to do. The skilled Lombard divorce attorneys at A. Traub & Associates are well versed in all aspects of divorce law, and we are happy to help you get where you want to be in life. Contact us for a confidential consultation today.

Source:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59