Divorce With a Missing Spouse

Spouses don't always engage in open warfare when they break up. Some NJ divorces are amicable and uncontested, and still others are resolved by default -- one spouse files, the other fails to answer the divorce papers, and so the court issues a judgment or decree that ends the marriage. This can happen when spouses go their separate ways and for one reason or another never get around to filing for divorce. If you lose track of your spouse over the years and now you want to end your marriage, you can still do so even if you don't know where he's living.

Serving the papers is an integral part of NJ divorce proceedings because it gives the court jurisdiction over the spouse who didn't file for divorce, and the right to decide such issues as property division, custody and child support. The spouse who didn't file has the right to argue on his own behalf and tell the judge how he wants these things decided. He can't do that unless he knows about the proceedings, so all states require that he receive a copy of the divorce papers, usually hand-delivered by a sheriff, constable or private process server. But if you don't know where your spouse is living or working, this can be impossible.

All states have rules in place for substituted service or service by publication to address this problem, but you must first prove to the court that you did everything possible to locate your spouse and that you came up empty. You're usually under no legal obligation to go to the expense of hiring a private investigator, although you might want to if you can afford it. New Jersey court R.4:4-5 requires a diligent inquiry to be conducted before substituted service by publication will be permitted. In New Jersey a diligent inquiry consists of, but not limited to doing the following:

1. Contacting your spouse’s former employers, friends and relatives.
2. Conduct a search of the Division of Motor Vehicles.
3. Search of all branches of the U.S. Military
4. Search the post office and the voter registration office in the town where your spouse was last known to reside.
5. Conduct internet, white page and social media search.
6. Have a skip trace search conducted.

After you've taken every possible step to locate your spouse, and after you've filed for NJ divorce, you or your attorney must file an affidavit with the court as part of your divorce case. Most courts will then allow you to publish a notice in the newspaper, alerting your ex that you're divorcing him and telling him what he must do if he wants to respond. Some states are more lenient about this than others. Texas requires that you also hire an attorney to represent your missing spouse's interests in the divorce, and this attorney will conduct a search for him as well.

If your spouse doesn't respond after you've published notice, the court will award you a divorce by default. If you have any questions about divorcing a missing spouse, call the Law Offices of Peter Van Aulen at 201-845-7400 for a free initial consultation with an experienced NJ divorce attorney.