Divorce by Publication: When Your Spouse Cannot Be Found

 Posted on January 17,2018 in Divorce

Sometimes, when divorce is imminent, one spouse may attempt to serve the papers on the other only to find that he or she cannot be found. This can present a problem, as Illinois law requires that a spouse at least make a good faith effort to serve the other before a divorce proceeding can continue, Ultimately, a divorce may proceed even if your spouse is unreachable, but it can cause problems in terms of child support and other legalities further down the road.

Alternate Means of Service

If your spouse cannot be located by conventional means, Illinois law permits what is referred to as service by publication. Service by publication occurs when a person places a notice in a newspaper or other publication in the county where the couple last lived or where the action is taking place for a period of at least three consecutive weeks. If the defendant fails to respond, it is assumed that they are either unable or unwilling to do so. Upon such a finding by court, the case may go forward.

Be advised that service by publication is only available after you have demonstrated proof to the court that you have done all due diligence in attempting to locate your spouse via more conventional means. This means that you have contacted their friends and employers, searched on the internet and in the phone book, and the like. Because service by publication can be a complication in a divorce, courts prefer to ensure that all other avenues have been exhausted first.

An Incomplete Divorce

If you have exhausted all avenues to locate your spouse and have been unsuccessful, the judge will grant you the right to file a default judgment of divorce. This means that the proceedings will go on, and it will be treated as though your spouse simply declines to answer any of the counts listed in your complaint for divorce. In a normal proceeding, this would lead to you being allowed essentially unbridled discretion, within the bounds of the law, as to how issues like child support and allocation of parental responsibilities would be allocated.

However, when filing a default due to a spouse’s absence (as opposed to a default where a spouse simply declines to participate), certain issues may not be decided, because both parties have the right to weigh in on such issues. Examples include child support, parenting time or visitation, and property division (aside from personal property, which can be divided). These must be held in abeyance until your spouse appears or until enough time has passed where they can be declared legally deceased.

Need Help Locating Your Spouse?

If you have filed for divorce, you almost certainly want nothing more than to move on with your life. Our dedicated DuPage County divorce attorneys will work with you toward making that happen as efficiently as possible. Contact our office today to set up an initial consultation.

Source:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1873&ChapterID=52