How Can I File for Divorce If My Spouse is Missing?
Many married couples file for divorce once they feel the marriage will no longer work. Other couples, on the other hand, opt to abandon the marriage or separate indefinitely. Though not very common, it is possible for some couples to separate and lose contact over time without a divorce case ever being filed. Without staying in touch though, it may be difficult to find a spouse if the need to file a divorce ever arises.
How do you begin the divorce process if you don’t know where your spouse is? The first is to file your petition as if your spouse were still living in the same house. The next step is to get your spouse served.
In Colorado divorce and child custody cases, the rule of thumb is that the other spouse must be served with the petition and summons for the court to gain jurisdiction over that party. The non-filing spouse must receive some form of legal notification that a divorce action has been filed, thus offering the other party an opportunity to be heard in court. When it comes to serving your spouse, state law gives you two options: 1) Have the other party sign a Waiver and Acceptance of Service or 2) Personally serve the other party.
Unfortunately, it may be next to impossible to do either of the abovementioned options if your spouse is missing. If you are truly unable to locate your spouse to serve him or her in person, the next step is to serve your spouse via publication.
Service by publication involves filing a motion with the court, who will authorize notice of the proceedings to be published in a local newspaper for a specific period of time. Of course, the court will only permit service via publication if they are convinced you’ve made a reasonable and genuine effort to find your missing partner. Such efforts may include asking your spouse’s relatives and friends, asking the post office if they have records of a forwarding address, contacting prior employers, or asking the tax collector if your missing spouse owns any property.
Once you have received approval from the court, you may publish your ad notifying your missing spouse of the divorce proceedings in process. Though the choice of which publication to use is yours, you may want to check with the court clerk for any requirements or recommendations. Your spouse will be considered to have been served if he or she fails to respond within the given timeframe. Your divorce will then be granted as a default judgement, and the court may grant you a divorce and determine the terms of the divorce according to the terms you have requested.
Take note that with service by publication, the court is not allowed to enter orders that involve the other party paying money—such as spousal maintenance or child support. This is because the court does not have personal jurisdiction over that party. This form of service, however, allows the court to enter a divorce decree, to apportion property, and other orders that do not require personal jurisdiction.
If you’re considering getting a divorce in Colorado but are unable to locate your spouse, it would be best to consult with a divorce attorney first. An experienced attorney should be able to advise you as to the more efficient and practical means of tracking down your spouse, as well as how to serve by publication if necessary.
