How To Get Your California Divorce – Even If You Can’t Find Your Spouse
One would think that finally coming to the conclusion that you want (or need) to get a divorce would be the hardest part of the journey. All too often, people are surprised to discover just how problematic pursuing the divorce process can be, particularly if you have a partner who is not cooperating.
Divorce can be a straightforward process – but often it is not. One way that a spouse can complicate matters, whether intentionally or not, is by going MIA. Whether your spouse’s absence is intentional sabotage, or there is a perfectly reasonable explanation, the fact remains that if you want a finalized divorce then their absence makes life more complicated for you.
Complicated, however, does not mean impossible. Particularly with experienced attorneys in your corner helping you navigate the process. This article aims to outline the initial steps you would need to take if you are pursuing a divorce with a M.I.A. spouse
- File for Divorce
Whether your spouse has fallen off the radar or not, the first step in any divorce action is to appropriately prepare and file a petition for divorce with the appropriate court. The petition for divorce, known as FL-100, should be completed and submitted to the court. You should be prepared to give some basic information including the dates of your marriage, any underage children you may have, and any properties you own.
- Serving Divorce Papers…or Due Diligence
Generally, a person must serve their spouse with divorce papers in order to move forward with the action. However, if your spouse is nowhere to be found then it presents an issue.
The court recognizes the injustice of a person remaining in limbo and stalling out a divorce action by waiting on a spouse who may or may not ever appear. Accordingly, the court does not necessarily require that a person actually serve their spouse with divorce papers, if they can prove that they did their due diligence to find the spouse and serve them.
The court will examine what efforts you undertook to find your spouse, so it is important that you document your efforts. One option is to hire a private investigator to search for the individual- though that is simply one option, not a requirement. Checking criminal databases, the social security death index, and military records can all be valuable resources in locating an individual.
While there is not a formal guideline of exactly what is required to show that you did your due diligence with conducting an exhaustive search for your missing spouse, the court will examine your documented actions and compiled evidence.
- Service by Publication
After the court sees that you have done your due diligence to conduct an exhaustive search, your next step is to file a “motion to serve by publication.” Serving by publication means that you publish a notice in an “acceptable source” – historically a newspaper or other news outlet in the area that your spouse most likely lives. If granted permission by the court, you may also serve notice by posting the notice of the divorce in a publicly visible area of the court house.
In order for this step to be validly taken, you must first gain permission from the court.
- Motion for Default
If your spouse still does not appear or respond to the divorce notice despite your efforts, you will next pursue filing a “motion for default.” The motion for default essentially states that one party did everything they could to serve their spouse with no results, and because the other spouse did not timely respond they are in default.
It is important to note that a motion for default will usually request a judgment in the filer’s favor. This means that, if granted, the filing party gets everything they asked for in the initial petition for divorce.
Contact Cardwell, Steigerwald Young
Our knowledgeable San Francisco divorce lawyers have helped countless clients navigate through the nuances and complications that tend to arise in family law matters. For experienced advice and sound legal counsel contact one of our esteemed attorneys today.
Sources:
slo.courts.ca.gov/self-help/family-law/divorce/finish-divorce-case/finish-divorce-case-default
courts.ca.gov/20213.htm?rdeLocaleAttr=en#:~:text=%22Service%20by%20publication%22%20means%20that,partner%20is%20likely%20to%20be
