Divorcing a Missing, Out of State or Uncooperative Spouse
Last month a client hired me to handle a simple divorce case, but her husband refused to sign the papers. We filed anyway and properly served him, but he didn’t respond. This happens more often than you’d think. Sometimes people aren’t ready to divorce and just refuse to participate. Other times they disappear and can’t be found or live so far away they ignore it.
So can you still divorce if your spouse is missing, out of state or uncooperative? The process is more complicated, but an uncooperative spouse can’t stop the divorce by ignoring it. If your spouse is missing or out of state you can ask for permission to serve them by publication or mail. If they ignore the papers after being served you can file a motion for default, which asks the court to approve the divorce anyway.
When you’re determined to divorce you can do it no matter your spouse’s involvement or location. Keep reading to learn about the steps to take if your spouse can’t be found, if they’re long distance or if they won’t cooperate.
- First Step File
- Unsure Where Your Spouse Lives
- Out of State Spouse
- Missing Spouse
- Uncooperative Spouse
First Step File
In order to get the ball rolling you need to file. It’s usually best to try to contact your spouse first. If they’re on board the divorce process is much simpler, but that’s not always an option.
If for some reason you aren’t able to work with your spouse file a petition for divorce with your local county superior court. This is an important step because there is a 90-day waiting period before the court will finalize the divorce.
Once you’ve filed, you need to serve your spouse to start the clock. Depending on your situation, service may be the most complicated part of your case.
Unsure Where Your Spouse Lives
Some client’s have no idea where their spouse is. This certainly complicates the service process, but it’s more common than you’d guess. When I first started handling divorce cases I was surprised how often I saw this, but not anymore.
I’ve seen a situation where a husband and wife had been separated for 20 years and the best we could do is identify the state his spouse was in. In another case, the husband was deported and had no intention of returning. We had to send papers to a remote village in Mexico where he was most likely to be.
If you don’t know where your spouse is the first thing you should do is some detective work. Check online directories like the WhitePages and Facebook. Call up relatives and friends to see if anyone has heard anything. You can even try former employers who may have an address on file for paychecks or tax documents. If you’re stumped, just do your best to think outside the box and narrow down their whereabouts.
While you’re impersonating Sherlock Holmes make sure to document every step of the process. If your spouse is out of state or missing there is a good chance you’ll need to ask a judge for permission to serve them by mail or publication.
In either situation, you’ll need a detailed record of the steps you took to locate them. Hand delivery is the preferred service method, so judges are cautious to permit people to use another method of service. You’ll need to justify why service by mail or publication is appropriate.
One thing to note is that the simpler the divorce the less scrutiny you’ll be under. For example, if you’ve been out of touch with your spouse for ten years, no children are involved and no property is divided you won’t need to show as much to get approval for service by publication. On the other hand, if you have two children together, ask for spousal support and are dividing substantial property a commissioner is going to make it hard for you to do anything other than personally serve your spouse.
Out of State Spouse
If you do locate your spouse and they’re out of state you may want to serve them by mail. Understand that you’ll need to go to court to get permission to send the divorce forms by mail. Often this is more trouble than it’s worth.
Before you go to court, see if you have any personal service options out of state. Often a relative or friend will live close enough to hand deliver the papers for you. If not you may be able to hire a process server to deliver the papers for you. In Seattle this typically runs about $100. If you’ve exhausted your options you can confidently stand in front of a judge and explain why service by mail is the best option.
When you go to court bring with you a Motion to Serve by Mail and an Order to Allow Service by Mail. If you look at the motion you’ll get an idea of what level of detail the court will need from you in order to approve the motion.
Once the order is approved you’ll need someone else to mail the documents for you. That person must be at least 18 years old and not a party to the case. The server must mail the forms at the post office and the envelopes must contain a return mailing address.
If you’re in King County mail two copies of the Summons and other divorce documents to your spouse. One set of copies should be mailed by regular, first class mail with postage fully paid. The second set of copies should be mailed via certified or registered mail with a return receipt requested.
After the documents are mailed ask the server to sign the Proof of Service by Mail. You’ll need to file it with the court clerk along with a copy of the Summons Served by Mail, and the return receipt received from the post office.
If you did your best to find your spouse, but you can’t locate them you can ask the court for permission to serve by publication. Make sure to exhaust all your search options before asking for this and like we discussed earlier, keep a detailed record of the efforts you made.
Service by publication means that you’ll publish notice in the newspaper for a set number of days. Costs will vary based on the paper, but it can be expensive.
You’ll need to prepare a Motion to Serve by Publication along with an Order to Allow Service by Publication. Bring these forms to the judge in ex-parte court along with specific details of the efforts you made to reach your spouse. Take a look at the motion if you’re wondering what sort of criteria needs to be met for the order to be approved.
Once the judge signs your order take it to the clerk’s office and file the original with the clerk. Be sure to get a conformed copy of both forms for your personal records.
When you submit your forms to the clerk you can ask for a list of newspapers authorized to publish your legal notice. Contact the newspaper and get a quote for the publication and directions on what you should provide. If there are multiple papers, shop around and find the best price.
Your summons will need to be published once a week for six weeks. After six weeks obtain proof of publication from the newspaper and file it along with this cover sheet at the clerk’s office.
At this stage you should have served your spouse personally, by mail or by publication, but that doesn’t mean they will cooperate. They may be in denial and not want to engage in the process. They may just be upset and want more time. Regardless, there are two main ways that they can be uncooperative, either they are absent or they refuse to agree.
An absent spouse is one that does not reply to the summons. While their lack of response may be frustrating, it actually simplifies the process. If a person does not provide a written response within 20 days of receiving the summons you can file a motion for default.
Because of the 90-day waiting period it’s easiest to ask for a default order on the 91st day after serving your spouse. This will save you a trip to the courthouse. You can present your motion for default and final divorce orders at the same time.
It’s best to schedule a hearing and give notice to your spouse. While notice is not required in each case, skipping it may come back to bite you. Your spouse will have the opportunity to undo the default divorce due to lack of notice. Notice ensures that a judge will not overturn the divorce decree later on.
When you arrive at the hearing bring the final divorce paperwork as well as the Motion for Default and Order on Motion for Default. The motion for default asks the court to finalize the case without your spouse because your spouse was given proper notice and failed to respond. As long as you can show proof of proper service the judge should sign off on the divorce, approving your requests.
Spouse Refuses to Agree
This is common. A spouse will file a notice of appearance in the case and then refuse to negotiate or makes unreasonable demands. Fortunately, their consent is not required to finalize the divorce.
Whether or not your spouse agrees to the divorce it will either be resolved by settlement or at trial. In King County, trials are usually set 11 months from the date of filing, so that is latest you should anticipate the case lasting. Plus, over 90% of divorces settle, so it is likely that you’ll reach a solution beforehand.
This article was designed to give you a better understanding of the divorce process when your spouse is either missing, long distance or uncooperative. Hopefully it gave you the confidence to move forward. If you have further questions or need help with your own divorce please call me at 206.409.4086 or send me an email.