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Can I Get a Divorce if I Cannot Locate My Spouse?

Posted on in Divorce

California divorce lawyerTo get a divorce in California, only one spouse needs to request it. California is a no fault divorce state, meaning one spouse can file for divorce citing irreconcilable differences, and the divorce will be granted. While most states have a no fault divorce option, some states allow parties to cite a reason for the marriage dissolution, such as infidelity or cruelty.

Because California allows for marriages to end without spouses giving a specific reason and based on one spouse’s desires alone, it is possible to divorce someone who you cannot locate. California law recognizes that due to the nature of divorces, a spouse may not know where to find the other spouse. Thus, California has a statutory procedure for serving court papers, when the address of the opposing party is unknown.

Service of Process Procedure

Typically, you must serve your spouse with divorce papers. The law views this as an important step because it puts all parties on notice of proceedings that will impact them. The constitution provides for due process including notice and a right to be heard.

Once you have filed your divorce petition with the proper court, this documentation must be served on your spouse. In non-contentious divorces, a spouse may accept the documentation delivered via mail and sign a notice and acknowledgment of receipt. If service by acknowledgement and receipt is not an option in your particular case, then you may have to hire a process server (or have another adult not a party to the action ) to serve the papers on your spouse. The person who serves must file a proof of service with the court.

Service by Publication

If the above methods of service have failed, you can request that the court for an order allowing you to complete service by publication, if you show due diligence in locating the other party. You will have to provide proof to the court that the process server tried personal service and the process server must sign a document under penalty of perjury to that effect. Courts are very strict with the statutory procedures for service by publication.

One of the statutory requirements of service by publication, is that you must publish the summons in the newspaper that is most likely to give actual notice to the party to be served.

Call a Los Gatos/Sunnyvale, CA Divorce Lawyer

If you wish to file for divorce but cannot locate your spouse, you should retain legal counsel. The process to divorce someone who is not physically part of the proceedings must be done precisely.

Failure to take all the steps required by the law could mean that your marriage could later be found to have never been dissolved. These situations can create a financial mess and can complicate future marriages you may try to enter into. An attorney will be able to properly handle your divorce, giving you the confidence that this chapter in your life will be closed.

Contact the accomplished Los Gatos, Sunnyvale divorce attorney at the Ventresca Law Firm at 408-395-8822 to set up your first meeting today.

 

Source:

http://www.courts.ca.gov/20213.htm

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