Can I Get Divorced If I Can't Find My Spouse? | Explained By Divorce & Family Legal

Divorce can be challenging under the best of circumstances, and it becomes even more complex when one spouse’s whereabouts are unknown or when a spouse refuses to cooperate.

Many people wonder, “Can I get divorced if I can’t find my spouse?” In such situations, the law does provide a path forward.

While both spouses remain married until a court issues a divorce decree, it is possible to get a divorce even if one spouse is missing or refuses to participate.

An absent or missing spouse shouldn’t be able to indefinitely prevent the marriage from being dissolved.

Filing Divorce Papers When Your Spouse Is Missing

Initiating a divorce does not actually require knowing the other spouse’s exact location – it starts with filing the necessary divorce papers in the appropriate court.

In New York, for example, a divorce action is filed in the Supreme Court (which handles matrimonial cases, equivalent to a family court for divorce matters).

The filing spouse (the “plaintiff”) will prepare a Summons (or Summons with Notice) and a Complaint for divorce and file these with the County Clerk in their county.

All standard requirements – such as state residency criteria and paying the filing fees – still apply. If money is an issue, the plaintiff can request a fee waiver for court fees by demonstrating financial hardship. Divorce and Family Legal, LLC will consult on questions such as Can I get a divorce without going to court?

Diligent Efforts to Locate Your Spouse

Courts require that a plaintiff make reasonable efforts to find and serve the other party through traditional means before resorting to alternatives.

There are some steps that are typically taken to locate a missing spouse before seeking court permission for alternative service:

Checking Last Known Addresses & Contacts

Clients must attempt to deliver papers to the spouse’s last known address and ask any friends, relatives, or neighbors for clues to their current whereabouts.

Searching Records & Online Databases

They should also search online databases, social media, and public records (voter rolls, property records, etc.) for any trace of the spouse.

Also consider checking if the spouse is on active military service using official databases, since special rules apply in that case.

Hiring a Process Server or Investigator

Professional process servers or private investigators specialize in locating individuals.

They can conduct in-depth searches far beyond the reach of a private individual.

If the spouse truly cannot be found, the process server (or a marshal) will provide an affidavit attesting that all attempts to locate the person were unsuccessful.

Requesting Permission for Alternative Methods of Service

According to New York's matrimonial law, personal service is usually required “unless the court allows the papers to be served another way” – an alternate service authorized by a judge.

When diligent efforts made by the family members have failed to locate the other party, the next step is to ask the court for permission to use alternate means of delivering the legal notice of the divorce process.

This usually involves filing a motion or formal request to the judge, explaining that the spouse cannot be found and detailing all the attempts made to locate them.

The plaintiff will request permission for alternative service (also known as alternate service), with the most common method being service by publication.

In this event, the publicized notice typically includes the spouses’ names, a brief statement that a divorce action has been filed, and a deadline for the spouse to respond. For more information, our divorce lawyers in Albany NY may be able to help.

Is Service by Publication Really Effective?

Service by publication is essentially a way to serve divorce papers by publishing a legal notice in a newspaper.

If convinced the spouse truly cannot be found, the judge will issue a court order allowing service by publication.

The order specifies which newspaper to use and how long the notice must run (for example, once a week for several weeks in a paper near the spouse’s last known location).

Publishing notice of the divorce can be costly, as newspapers charge for these legal ads. If the cost of publication is prohibitive, courts may arrange publication in a legal journal or waive the fee.

Default Divorce: When the Court Grants a Divorce by Default

If the missing spouse does not respond within the time allowed, the case becomes an uncontested divorce by default.

The judge will review the file to ensure all legal requirements are met – that jurisdiction is proper, the spouse was duly notified by publication as ordered, and no response was filed.

If everything is in order, the court grants the divorce by issuing a default judgment.

Can You Get Child Support If You Don't Know Where Your Spouse Is?

Default divorce proceedings will also address family and financial issues. The judge will divide marital assets and debts as fairly as possible based on the available evidence provided by the filing spouse.

If the couple has minor children, the court will typically award sole legal and physical custody to the filing spouse by default, and it can order the absent parent to pay child support (enforcement of support may have to wait until that parent is located).

The court may likewise award spousal support (alimony) if appropriate, though collecting it will depend on finding the absent spouse.

What Happens to Property Division If You Can't Find Your Spouse?

New York applies equitable distribution, which is a “fair, not necessarily equal” division of marital assets and debts.

In a default setting, the judge weighs the evidence the filing spouse submits (deeds, account statements, loan balances, appraisals) and can still divide property even without the other spouse’s involvement.

Economic issues must be resolved or decided by the court before the divorce is granted, which includes dividing marital assets, maintenance, and related financial matters.

Factors That Can Prevent a Person from Divorcing Their Missing Spouse

A New York Supreme Court will not proceed if statutory residency rules (DRL §230) are not met - e.g., two years’ continuous residency, or one year plus a New York nexus such as marriage or the marital domicile.

Filings that do not establish residency on the record can be rejected or stalled.

Before any alternative methods of service are allowed, the court expects documented, reasonable searches: last-known addresses, contact with family members, database checks, and attempts at personal service by a licensed process server or marshal.

Thin proof of these efforts is a common reason a judge denies alternate service.

What Happens If You Can't Get a Divorce Even Though You Can't Find or Serve Your Spouse?

When a spouse’s location is unknown and personal service keeps failing, a New York court cannot finalize the divorce until legally adequate notice is given - or a judge authorizes an alternative way to notify the missing spouse.

Until then, the parties remain married, and the case may stall or be dismissed without prejudice.

After a judge authorizes service by publication and the notice runs as ordered, the matter can proceed to a default if the respondent does not appear.

The court can then issue a default judgment ending the marriage and, when the law permits, address finances and parenting.

Speak to an Attorney if You Can't Find Your Spouse in Divorce Proceedings

Going through a divorce with an absent spouse is undoubtedly challenging – emotionally and legally.

It requires patience and careful adherence to procedure, but the law does provide a way out of a marriage even when one partner is missing. In such cases, an experienced attorney’s guidance can be invaluable. They have insight on questions like Can I get the family home in a divorce?

Divorce & Family Legal, based in Albany, New York, has extensive experience handling divorce cases involving an absent spouse.

The firm’s attorneys provide compassionate, professional representation, making sure that every step is carried out properly.