Can I use notice by publication to divorce my spouse?
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Can I use notice by publication to divorce my spouse?
If I live in CA and my spouse’s last known location was MA; currently I do not know where he is.which is published once a week for four successive weeks, with at last five days between successive publications.
Asked on July 10, 2011 under Family Law, California
Answers:
M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney
Answered 12 years ago | Contributor
The concept of "notice" in any legal proceeding is crucial. In a divorce setting this means that even if a spouse can't be located they still must be notified of the divorce action before it can proceed. This is accomplished through something known as "divorce by publication", which is allowed in CA.
In brief this is the way it works. You as the filing spouse (i.e. petitioner) must make a diligent effort to find your husband the missing spouse (i.e. respondent). You will have to present proof to a court that you made a diligent search to locate him. To prove your best efforts you will have to show the court that you checked with family/friends, voting records, the phone book, DMV, and any other source that would likely lead to uncovering your spouse's current whereabouts. Once you have demonstrated to the the court's satisfaction that you have made a thorough search, it will allow you to you to serve your spouse by publishing notice in a newspaper (as opposed to personally serving a summons; the usual method). The court will instruct you as to which paper you should use; typically it will be one in the area of your spouse's last known address.
The missing spouse has 30 days to file a response, which begins to run on the 28 days after the first day of publication. When the missing spouse fails to respond within the 30 days, the Petitioner files a request to enter a default dissolution of marriage. No hearing is held. The divorce becomes final 6 months after the first publication of the summons in the newspaper.
Note: The court can grant the divorce in a publication action, but it cannot make any decisions regarding child custody, child support or division of property.
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