If I can’t locate my wife, can I still get divorced?

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If I can’t locate my wife, can I still get divorced?

My marriage lasted less than a month before my wife had a panic attack and moved out. She said she was going to file for divorce. Several years later I found that I’m still married when my fiance and I plan on getting married soon. I don’t know where she lives, what name she’s going by, or anything else. Can I file for divorce without knowing any of that?

Asked on August 30, 2011 Illinois

Answers:

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

Answered 10 years ago | Contributor

There is a legal remedy known as "divorce by publication" for a situation such as yours. Basically, legal action typically can't be taken against someone without giving them opportunity to appear and explain their side of things, so notice must be given to them. Specifically, even if a spouse can't be located they still must be informed of the divorce proceedings before it can proceed. 

In a divorce by publication You as the filing spouse (i.e. petitioner) must make a every effort to find your missing spouse (i.e. respondent).  You will have to present proof to a court that you made a diligent search to find them (e.g. 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 the divorce in a newspaper selected by the court (in lieu of personal service).  

In most states, the respondent typically has 30-60 days to file a reply. If they fail to do so within that time, the petitioner can then file a request to enter a divorce by default. 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).


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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