Can you get a divorce without notifying your spouse?
Generally, no. Although courts may make an exception if notifying your soon-to-be ex-spouse is not possible.
In most instances, service of process on your spouse is required. That is simply the legal way of saying that after you file divorce papers in court, you are required to deliver copies of the filed legal documents to your spouse. This often must be done in person. Fortunately, you do not have to be the person to do the delivering. There are many companies that can do so on your behalf, and the local county sheriff may also be an option. After service is completed, the person who delivered the documents completes an Affidavit of Service, often called a proof of service, which you then file with the court.
Your spouse will need to receive notice of the divorce proceeding for the marriage to be ended legally. Many divorce litigants hire process servers to serve the spouse with the divorce petition, summons, or whatever legal documents their state law requires. Also, a spouse, or their lawyer, may voluntarily sign an Acceptance of Service or Waiver of Service to acknowledge their receipt of the divorce papers, which can save time, money, and headaches.
If your spouse is in jail, it can be trickier to serve them copies of the divorce papers. The incarcerated spouse may be able to sign a Waiver of Service, which means they would not need to be served with the initial court papers. If the incarcerated spouse does not sign a Waiver of Service, then the initial divorce papers will often need to be personally served on them.
Jail facilities usually have a specific procedure in place for serving inmates. Simply mailing the divorce papers to the jail likely will not suffice. Sometimes, the county where the incarcerated spouse resides may have arrangements for the sheriff or deputy to serve the spouse. For proper personal service on an incarcerated spouse, you may have to determine whether the basic divorce documents are enough or if additional forms are needed. For instance, you may need to obtain copies of court documents from your spouse's criminal case as proof that your spouse is incarcerated.
If there is a domestic violence issue with your spouse, delivering the filed divorce papers is still required. However, you can ask for a protection order from the court before filing for divorce. Once the judge grants a temporary protection order, it takes effect immediately. Usually, the protection order must be served by a sheriff, so you will need to contact local law enforcement to arrange that. Fortunately, in this scenario, the sheriff may complete the service of process on your spouse for the divorce papers along with the protection order.
Can I divorce my spouse without knowing where they are?
You can potentially divorce your spouse even if you do not know where they are located. Each state has a service by publication law. This can be used to serve your spouse when they are intentionally avoiding being served, in hiding, or at an unknown address. The court, however, requires other steps be taken first before providing permission to use this delivery method.
If you cannot find your spouse, you may file a motion with the court to request permission to serve by publication. In the motion, you will need to provide details regarding your attempts to locate and serve your absent spouse. These details may include contacts for family, friends, and employers of your spouse. Attaching proof of attempts for personal service is a good idea, as well as noting internet search results, where you last saw your spouse, and the last known address of your spouse. You will have the burden to prove to the court that your spouse could not be served in person.
If your spouse lives in a different country, there may be additional requirements.
What happens if my spouse ignores the divorce papers?
After a spouse is served with divorce papers, they have a limited time to file a response. If your spouse ignores the divorce papers, or fails to respond, however, you can still get divorced. By failing to respond to a divorce petition, a spouse may relinquish their right to participate in the divorce proceeding. If they have responded and refuses to participate, you may need to notify the court. A judge may be able to compel their participation, or finish the case without them.
While an uncooperative spouse can delay and make the divorce action more difficult, a default divorce may be an option. If you properly served the divorce papers on your spouse but they refused to participate, courts in some states may grant a default judgment divorce. In these states, as long as your spouse does not contest the divorce, a divorce can be finalized after a certain number of days have passed.
What can I do if my spouse is evading service?
If you are having trouble serving your spouse, there may be additional steps you can take to advance the divorce process. In some jurisdictions, you might be able to mail the divorce papers to the mailing address for your spouse via first-class mail or certified letter, both of which allow you to request a return receipt.
Also, you may be able to seek help from someone in the court system in the county where you filed the divorce petition. In many cases, the sheriff or local law enforcement can serve the papers on your spouse. If the spouse evades the sheriff, then you might consider hiring a private process server to serve the papers. Professional process servers are often private investigators who have the resources to locate an evading spouse. If you still cannot locate your spouse, then service by publication may be granted by the court.
Before you file for divorce, you may want to complete a Divorce Worksheet to get organized and figure out your next steps. If you have more legal questions about divorce, reach out to a Rocket Lawyer On Call® attorney for affordable legal advice.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.