Divorce is a matter of state law, rather than federal law. Therefore, the requirements for obtaining a divorce depend upon the laws and regulations of the jurisdiction. Still, most states follow the same general guidelines for divorce, which require a person to petition for divorce and allow the other spouse an opportunity to respond to the petition. These proceedings are complicated when a spouse is missing. However, you can still file for and obtain a divorce even if your spouse is not located.
Things You'll Need
- petition for divorce
- petition for divorce by default
- application for order of publication
Meet with an attorney that specializes in divorce or family law. Many law firms offer free initial consultations, providing you an opportunity to learn about any particularities of divorce law in your state.
Draft and file a petition for divorce in the circuit court (in some jurisdictions, known as state court) that serves the city or county in which you reside. If you need assistance drafting the petition, visit the clerk's office in the court. The clerk of the court provides forms to assist the public with pleadings and filings.
Search for your spouse with due diligence. Typically, when a petition for divorce is filed with the court, the petitioner is required to serve his or her spouse with the petition within so many days, depending on the state. Service is the formal delivery of legal papers. However, service is complicated when you do not know your spouse's whereabouts. Make a diligent effort to find your spouse, even if you have already done so, by calling friends and family, searching telephone directories and visiting your spouse's last known address or place of employment. If you have hired an attorney, the attorney can subpoena the post office, the board of elections and the department of motor vehicles for records of any changes of address records.
Apply to the court for an order of publication. A judge grants orders of publication to petitioners that have demonstrated "due diligence" to find a spouse unsuccessfully. The application form, which can be obtained from the clerk's office, requires you to list all search efforts undertaken to locate the missing spouse.
Publish within 30 days a legal notice in the newspaper announcing your petition for divorce from your spouse. This publication serves as legal equivalent of formal process service. Depending on the court, the publication may have to appear in the newspaper of the city or town in which your spouse was last known to reside. There may also be a mandate on the number of times that the notice must appear in print, such as once a week for three weeks. Confirm with the clerk's office the particular rules of the jurisdiction and follow accordingly.
File a petition for divorce by default. A divorce by default is granted when the missing spouse fails to respond to the petition. This petition form can also be obtained from the clerk's office.
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