Haven’t seen your spouse in years? Here is the step by step process you need to take to get a divorce when you can’t find your spouse!
“We were so young”
It happens. You meet your soul mate in high school. You plan out your entire future, but are only 16. You and your lover, we will call him Bobby, decide to get married as soon as you turn 18. Unfortunately, Bobby finds other lovers by the time he is 21 and can go bar hopping. You and Bobby never have children and decide to separate. Ten years have passed, and you have forgotten about Bobby. You meet your future husband, Chris. When Chris proposes to you, you immediately remember about that long lost love, Bobby. You realize you never divorced Bobby and you have absolutely no idea what to do. What are your options? Keep reading to learn how to get a divorce if you can’t find your spouse?
The Unfortunate Formal Process
Unfortunately, you cannot go and sign a piece of paper at the courthouse to obtain your divorce from Bobby. The process is much more complicated. There are a number of steps that must be taken, and it can take a while. It is important you consult an attorney to ensure you are following the correct procedures. Here are the steps you must take:
- Filing the Petition for Dissolution
In order to obtain your divorce from Bobby, you need to first file a Petition for Dissolution with the court. This will get you a case number and matter with the court. There is absolutely no way to obtain a divorce without doing this.
You have probably heard of a process server. Usually, process servers bring bad news. In movies and TV shows, a person will show up at someone’s driveway and hand a stack of paperwork to the person who lives at the house and state, “you have been served.” This is exactly what you need to do with your Petition for Dissolution. You need to serve Bobby with it.
He’s Missing! How in the world do I serve him?
Surprisingly, this comes up a lot. You have absolutely no clue where your spouse or other parent of your child is. Many people think in those situations that they do not need to serve them, or the court will make an exception. This is incorrect. The court will NOT make exception. You MUST serve the other person. If you do not, your case will likely be dismissed within 120 days of filing your petition. Fortunately, the court provides some solutions to make service easier on missing people.
Lets take a look at those options:
Rule 41 of the Arizona Rules of Procedure provide the steps you must take to ensure you have properly served the other person. Keep in mind that many of those steps only apply if you know where that person is. You must go through the full list of options.
Option 1: Personal service. You hire a process server to serve the person. This will only work if you know where the person is.
Option 2: Mail service. You send the Petition and accompanied documents to the person via mail. This will only work if you know where the person is and if they are in the state of Arizona.
Option 3: Alternative service. There is a wide range of alternative service options, but in order to have alternative service, you must get permission from the court prior to doing so. So how do you do this?
The rule for alternative service specifically states:
- Alternative or Substituted Service. If service by one of the means set forth in the preceding paragraphs of this rule proves impracticable, then service may be accomplished in such manner, other than by publication, as the court, upon motion and without notice, may direct. Whenever the court allows an alternative or substitute form of service pursuant to this subpart, reasonable efforts shall be undertaken by the party making service to assure that actual notice of the commencement of the action is provided to the person to be served and, in any event, the summons and the pleading to be served, as well as any order of the court authorizing an alternative method of service, shall be mailed to the last known business or residence address of the person to be served. Service by publication may be employed only under the circumstances, and in accordance with the procedures, specified in paragraph L and Rule 42(E).
So what does this all mean?
After you have filed your petition and accompanying documents with the court, you need to determine whether or not you know where your spouse is. If you do not know where he or she is, you must take “reasonable efforts” to find that person. So what constitutes a reasonable effort? Some types of reasonable efforts may include, calling friends and family members of the other person to determine if they know where he or she is, checking social media websites such as Twitter and Facebook, hiring a private investigator, conducting a skip trace, serving at the person’s last known address, and checking other public records.
After you have taken as many “reasonable efforts” as possible, you can then move forward with letting the court know you need a form of alternative service, if you still have not found the person. To do this, you will need to file a Motion for Alternative or Substituted Service. In your motion you will need to explain where the person was last known to live, and what steps you took to try and find him or her. You’ll want to specifically request that the court allows you to conduct alternative service. The court will rule on your motion, and usually provide you with some guidance on how to serve the person, and/or if service was accomplished through your steps. Most likely you will serve by publication.
Service by Publication
Service by publication is likely to be the most common form of alternative service. You are not required to get permission from the court prior to publishing. However, keep in mind that if you jump straight to publication, it may not always work. The court may want you to try other means prior to publishing. The court may not have jurisdiction over some of your issues. This means the court might not be able to make decisions for you on some issues. The court cannot make orders regarding paternity, child support, spousal maintenance, or marital property. So if there are a number of assets that need to be divided, service by publication will not be the best option. However, if you are in a situation where all you need is a divorce and there are no issues, publication will be quick and simple if you do not know where the person is.
In order to satisfy the service by publication rule, you must publish in the county where you last knew the other person was living. You need to publish in a newspaper at least once a week for four consecutive weeks. The publication should include the summons and a way of obtaining the pleadings. After the four weeks, you should obtain an affidavit from the newspaper company showing when you published and what was published. That affidavit will need to be filed with the court.
So what happens now?
After completing service, whether by alternative service or publication, you must wait for an additional 20 days. The 20 days gives the other person a chance to respond to your petition if they disagree with anything you stated in it. If, after 20 days, no response has been filed, you can move forward with what is called default.
A default means you can get your divorce finalized without every having to find the other person. It is the easiest situation when the other person is missing. Here are the steps you must take:
- Obtain an Application and Affidavit for Default. This can be found on the Court website or through your attorney.
- Fill out the Application and Affidavit.
- File the completed Application and Affidavit.
- Mail a filed copy of the Application and Affidavit. If you do not know where they live, send to the last known address.
- Wait 10 days.
- Request a default hearing. You can do so by calling the court or getting on the court website.
- As you wait for the default hearing, you need to prepare some documents to take with you. This includes a Decree of Dissolution (you can get this on the court website). If you have children, there are a number of other documents needed. It is recommended to consult an attorney if you are in that situation. Make sure to bring copies of the Decree with you.
- Go to your hearing. The judge will ask you some questions, and likely sign off on your decree then and there.
- Congrats! You are officially divorced!