Divorce by Publication: The Case of the Missing Spouse

 Posted on January 27, 2015 in Family Law

In Illinois, couples may decide to divorce either by claiming that a divorce is fault-based or no fault-based. A no fault divorce basically provides that there are no specific reasons for which a couple may decide to divorce, other than their desire to separate. However, there are fault-based reasons by which a spouse may use.

Fault-Based Grounds for Divorce in Illinois

The following are the fault-based grounds for a divorce in Illinois:

• Impotence throughout the marriage;
• The spouse was already married at the time of the second marriage;
• Adultery;
• Habitual drunkenness for two years;
• Use of addictive drugs for period of two years;
• The attempted murder of the spouse;
• Extreme and repeated physical or mental cruelty;
• Conviction of a felony or crime;
• Infection by one spouse of another of a sexually transmitted disease; or
• Abandonment or desertion by one spouse for one year.

These fault-based grounds may be invoked by one spouse against another in support of a divorce. As part of a divorce, the spouse attempting to invoke a fault-based divorce must file a summons and petition of divorce to his or her spouse.

But what happens when a husband or wife is abandoned or deserted, and his or her spouse cannot be found?

Illinois’s View on the Missing Spouse

Illinois does not require a spouse to remain married to a spouse who has disappeared. A spouse may be considered "disappeared" if he or she has left the state on his or her own volition, or if he or she never returned home as a result of the actions of another.

Illinois permits that an abandoned or deserted spouse may request a court, in lieu of an in-person summons, the ability to provide service by publication.

Service and Divorce by Publication in Illinois

Service and divorce by publication is a court’s answer to a missing spouse. Due process provides that all spouses must be notified and given the opportunity to be heard before their rights are altered by the judgment of a court.

In the case of a divorce, both sides are given the opportunity to be heard so a divorce agreement is as equitable as possible. Service by publication in Illinois provides that the information about a divorce needs to be published in a local newspaper; the newspaper must be one that a missing spouse would be most likely to read. Therefore, one should publish a notice in a newspaper in the last known area that a missing spouse was living, or even in a favorite newspaper of the missing spouse.

Burden on the Deserted Spouse before Publication

Before service by publication is permitted, a deserted spouse is required to do a full-faith investigation of the last whereabouts of his or her missing spouse. This could mean not only making phone calls to his or her spouse’s family, friends, and other contacts, but also hiring a private investigator.

The extent that a deserted spouse must search is not defined or qualified, but a court must find that a deserted spouse did all that was in his or her power to locate the missing spouse.

The Procedure after Publication and Notice

Once a service by publication and a notice has been published in the newspaper, a missing spouse has a certain number of days in which he or she can make his or her appearance known to the court. He or she must file a counter-petition and let the court know of his or her acknowledgment that divorce proceedings have begun against him or her.

However, if a missing spouse does not come forward, a divorce may be granted by the court in favor of the deserted spouse. Issues like child support, alimony, or property distribution will remain unresolved until a missing spouse is found or comes forward.

Family Law Attorneys in DuPage County

A missing spouse can bring lots of emotional trauma and confusion throughout his or her absence. The complexities of divorcing a missing spouse should not be one of them. An experienced family law attorney at Mevorah & Giglio Law Offices can help guide you through the service and divorce by publication process. Contact our DuPage County family law attorneys today for a free and confidential consultation.