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Cannot locate my spouse, can I still file for divorce?

Cannot locate my spouse, can I still file for divorce?


Cannot locate my spouse while filing for divorce? Can I still file for divorce while lost touch with my spouse? The answer is absolutely yes. The law maker has designed a specific process for serving a missing spouse. Even though the process may take a little longer.

When it comes to divorce, many people choose to escape from the unhappy marriage rather than engaging in the divorce proceeding. This might be troublesome for the other party as they cannot properly serve the complaint and summons. One of our client’s husband left the children and the wife for more than 3 years without a single message. The wife completely lost contact with the husband. She has to work to pay for the mortgage and take care of the children at the same time. During the three years, the wife was not able to sell the house or refinance the mortgage because the paperwork requires husband’s signature. Also, The wife was not able to take the children to Korea because application for passports also requires both parents signatures.  It was through publication that the wife finally got the divorce judgment and an order enable the wife to refinance the mortgage on the house. In this article, we will discuss the divorce proceeding that applies if you cannot find your wife or husband.

File Complaint

To start the divorce proceeding, one party needs to file the divorce complaint with the court. To file a complaint, the current address of your spouse is usually required. But if you cannot find your husband/wife, you can state “unknown” on the paperwork. Experienced attorneys will explain your situation in detail in the complaint to put the court on notice that additional steps may be necessary for your case to proceed.

Serving the Summons and Complaint via Publication

After filing with the court, New Jersey Law requires the plaintiff to serve the summons as well as the filed complaint with the defendant. This process is usually referred to as “service”. Services gives court the jurisdiction over the defendant and enables court to make decisions on issues related to the divorce, such as property division, child support and custody, alimony, etc.

New Jersey allows services through Publication once you prove that you’ve exhausted all the possible methods to locate your spouse. New Jersey Court Rule 4:4-5. (Summons; Service on Absent Defendants; In Rem or Quasi In Rem Jurisdiction)requires a diligent inquiry to be done before allowing the service by publication.  Based on our experience, diligent research usually includes, but not limited to:

  1. Contacting your spouse’s relatives, friends and employer;
  2. Internet Search
  3. Conduct a search of the Division of Mortor Vehicle;
  4. Mitilary Search

After conducting all above-mentioned methods, you may file a motion with the court for permission to serve your spouse by publication. Once it’s granted, you need to place a legal notice in local newspapers in the area where your spouse last resided. Detailed requirement will be specified in the court order.

Enter Default Judgement

Once you finished the publication and your still cannot locate your spouse, you can proceed to enter default judgment. You will be required to make appearance at the default hearing. The judge will ask you some basic question about your divorce. The judge is also likely to raise questions regarding your attempts to find your spouse. after the default hearing, the judge will issue the Final Judgment of Divorce.

Park & Caporrino has a strong record of obtaining favorable result to our clients. We have over 25 years of experience in family law in  New Jersey and New York, with a mission to protect what our clients value most. We sincerely hope that you find this article useful, if you have any questions or suggestion regarding our columns, please feel free to email our office at jsp@parkcaporrino.com and aip@parkcaporrino.com or contact us at (201) 242-9666.

Above article is for general guidance only.

Park & Caporrino, LLP
Attorneys at Law.
Licensed in New York and New Jersey