When a party to a marriage wishes to divorce, they typically initiate the process by telling their spouse they want a divorce, filing the appropriate papers with the court, and then serving their spouse the divorce summons. After the summons has been served, the receiving spouse will have an opportunity to reply to the summons, and the divorce will be officially underway.
But what does an individual do in the event that he or she cannot locate a spouse, and therefore is unable to serve the spouse with a divorce summons? Can they still seek a divorce?
Make a Good Effort to Find Your Spouse
The court tasks a spouse who wishes to file for divorce with the duty of making a good faith effort to find a spouse in order to serve them with papers. This may mean asking your spouse’s family and close friends if they know where your spouse is, reviewing your spouse’s cellphone or credit card history to determine a location, and using the internet and other search techniques (including, in some cases, even hiring a detective) to locate your spouse. The court will ask for proof that you made a good effort, so it is important that you not only do all of the above, but record it as well.
If You Still Cannot Locate Your Spouse…
If you have made a good faith effort to find your spouse and you still cannot do so, the state of Illinois allows you to pursue your divorce via service by publication. Service by publication is the act of using a publication of some sort, typically a newspaper advertisement, to inform your spouse that there is a divorce proceeding against him, and to request that he respond to your request for divorce.
Your publication should include a date of default, which is the date by which your spouse is required to respond to your petition.
If Your Spouse Doesn’t Respond
If your spouse does not respond to your publication by the date that is required, then you can proceed with pursuing your divorce. While a judge cannot make a decision about things like maintenance (alimony) or property division without your spouse, they can grant the divorce, and give you custody of your children. Once the divorce is granted, your spouse will have approximately one month’s time to petition the court to challenge the divorce. If you locate your spouse at a later date, you can go back to court to get a determination about the issues that could not be settled previously (like property division).
Learn More About What to Do When You Cannot Locate Your Spouse
When you cannot locate your spouse, one of the first things that you should do is hire an experienced Illinois divorce attorney who can help you to make a good faith effort to locate your spouse, and to pursue a divorce by publication if location is impossible. At the offices of Fay, Farrow & Associates, P.C., our attorneys care about you, and will work hard on your behalf. We serve clients in Naperville, Downers Grove, Lombard, Lisle, Aurora, and more. Contact us today for your initial consultation.