How can I get a divorce if my husband and I are separated and I have not seen nor heard from him for 5 years?

We have an 8 year old son together. His own family hasn’t even heard from him or knows how to reach him; they still see their grandchild regularly. It’s time for me to move on with my life. How can I divorce him if we cannot contact him? Can I file legal separation or are we already considered legally separated? I don’t want child support or alimony or anything like that. I just want a divorce.

Asked on August 25, 2011 Texas

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

In a situation such as this there is a legal remedy called "divorce by publication". Since legal action should not be taken against someone without giving them opportunity to appear and explain their side of things (in this case, to answer the complaint of divorce), notice must be given to them. Therefore even if a spouse can't be located they still must be informed of the divorce action before it can proceed. This is what is accomplished by a "divorce by publication".

Typically, works as follow. You as the filing spouse (i.e. petitioner) must make a diligent effort to find your missing spouse (i.e. respondent).  You will have to present proof to a court that you made a good faith effort to search and find them. To prove this to the court you will have to show that you checked with family/friends, voting records, the phone book, DMV, and any other source that would likely lead to uncovering their current location.  Once you have demonstrated to the the court's satisfaction that you have made a such a search, you will be allowed to serve your spouse by publishing notice of your divorce in a newspaper (instead of the more usual method of personal service).  The court will instruct you as to which paper should be used.  

In most states, the respondent has 30-60 days to file a reply after the first day of publication. If they fail to respond within that time, the petitioner can then file a request to enter a default dissolution of marriage. It is generally granted upon the terms requested by the petitioner (although the respondent is given a certain time frame in which they can appeal the divorce or the terms of the divorce).


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