How to Get A Divorce When You Can’t Find Your Spouse

If your child comes to you and says “I cannot find my socks,” your first response may be to ask “Where did you look?” If you cannot find your spouse and ask the judge to grant a divorce, you may very well hear that same question.

Due process requires that the nonfiling spouse be notified of a divorce action. But that’s not always possible. If you cannot find your spouse but want and/or need a divorce, what legal options do you have?

Divorce by Posting

The process is streamlined if there are no minor children. In these cases, the law allows service by posting. A legal notice must be on the courthouse door for at least 27 days. After that time, assuming that the 60 day waiting period has expired as well, you may ask the judge for a default judgment.

Divorce by Publication

The process is a bit more complicated if there are minor children. You must convince a judge that you have made a diligent search for the missing spouse, but have been unable to locate the person. The diligence affidavit must include your search efforts, which should include:

• Asking friends and relatives for current contact information,
• Checking directory assistance and the telephone book in any place where you believe the missing spouse may reside,
• Verifying that the address you have is not current, and checking the post office for a forwarding address,
• Searching for the missing spouse on the Internet,
• Checking military records at https://www.dmdc.osd.mil/appj/scra/scraHome.do, and
• Checking the Texas Department of Criminal Justice records at www.tdcj,state,tx.us/offendert_information.htm

Some courts may also require an attorney ad litem for the missing spouse, and the filing spouse must pay the legal fee.

If the judge approves the affidavit, you may then place a paid notice in a local newspaper. Most courts have very strict requirements regarding what the notice must say and where it must be placed.  After the notice runs 30 days, you can ask for a default judgment.

The Aftermath

If you discover that your spouse obtained a divorce without your knowledge or consent, you generally have up to two years to have the decree set aside. The filing spouse must ordinarily bear the cost of the hearing.

Substituted service may be an option for some divorcing couples. For a free consultation with an attorney who knows how to get things done, contact our office. Ms. Welch went to school here in South Texas.