How Do I Get a Divorce When I Can’t Find My Spouse?

How Do I Get a Divorce When I Can't Find My Spouse?

How Do I Get a Divorce When I Can’t Find My Spouse?/Photo by Vie Studio from Pexels

Filing Divorce

You can certainly FILE for divorce if don’t know where your spouse is.  Just file a Petition, Summons, Civil Case Cover Sheet, and UCCJEA (if you have kids) and pay the $435 filing fee.

The problem is SERVING the documents.

Oh, and if you’ve been served, read this article: I Got Served Divorce Papers, What to Do?

Due Process

In the American legal system, NOTICE is critical.

The law says that when you sue someone (and yes, a divorce is a lawsuit), you must give formal notice to the other side that you have started the legal process.

Law requires you to “serve” the other side copies of any paperwork you have filed with the Court.  “Service of court papers” means that the other side must get copies of any paper you file with the court.

The FIRST time, you must do it in PERSON.  And service must be by a third party (NOT a party in the divorce), who is over the age of 18.

Until the other side has been properly “served,” the judge cannot make any permanent orders or judgments.

What If I Can’t Find My Spouse?

If you cannot find your spouse, you will need to get creative and serve them via publication.  This is when you publish the Summons in the newspaper.  (In the hopes that they are reading the newspaper somewhere, and thus be notified that you are divorcing them).

Seeking Permission From Court To Publish Summons

You will need the Court’s permission for service by publication.  Before the Court will grant permission, you must prove you went through reasonable efforts to find your spouse.

You can read more about service by publication here: Service By Publication.

Divorce Can’t Find Spouse

From First Date of Publication, Wait 28 Days

On the 29th day, service is complete.  (Assuming spouse is still missing, and did not respond.)  If you find out where they live at this time, you will need to serve them.

Request for Entry Default

At this time, you can request an entry of default by filing the appropriate forms.

Default Judgment

Thereafter, you may request the Court enter a default judgment.  In some cases, the Judge will just rubberstamp the forms. (no kids, no support, limited property).

In other cases, the Judge will require a hearing, also known as a “prove up hearing”.

Prove Up Hearing

Prove up hearings in California are found in Family Code 2336.  

These hearings are genereally required in these circumstances:

  1. Request to terminate spousal support in a marriage of over 10 years.
    2. Request for no visitation or supervised visitation.
    3. Request for a specific amount of spousal support.
    4. Request for child support other than guideline.

Have a case like this?

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