Can You Get a Divorce If You Can’t Locate Your Spouse?

Filing for divorce is never easy and it can feel even more stressful when you can’t find your spouse. The good news is that you can still move forward with a divorce, even if your spouse’s location is unknown. However, you’ll need to take specific legal steps to show the court that you’ve made every reasonable effort to locate them.

Step 1: Attempting Service

Before you can proceed, you must first attempt to serve your spouse with divorce papers through traditional methods such as via the sheriff’s office or a special process server. If those efforts fail, the court may allow you to serve your spouse by publication.

Step 2: Service by Publication

Service by publication is a legal process that notifies a missing spouse about a pending divorce through public notice, typically in a legal or local newspaper in the jurisdiction where the divorce is filed.

To proceed with service by publication under 735 ILCS 5/2-206 (a-5), you need to file an affidavit stating that you do not know your spouse’s whereabouts and have made every effort to find them. The published notice will include key information such as:

• The court name and case number
• The names of both parties
• Notice of the pending divorce action
• The date on or after which a default may be entered against your spouse

Once published, the clerk of the court will also mail a copy of the notice to your spouse’s last known address within ten days. The notice must run for at least three consecutive weeks, and the process generally takes about 30 days to complete.

Step 3: Conducting Additional Searches

Courts want to ensure you’ve truly done everything possible to locate your spouse. This means, going beyond phone calls or emails you should also check social media, contact mutual friends and family, and look into other possible ways to reach them. Demonstrating a thorough search helps the court verify that service by publication is justified.

Can I serve them via text, email or social media?

Yes, you can, as long as the method of service satisfies due process. This means the notice must be reasonably likely to inform the other party that a case has been filed and give them a fair chance to respond. This standard comes from O’Halloran v. Luce, 2013 IL App (1st) 113735, 156, citing Hwang v. Ill. Dept. of Pub. Aid, 333 Ill. App. 3d 698 at 707 (1st 2002).

Illinois allows alternative methods of service, such as text, email, and social media under Supreme Court Rule 102 and Section 2-203.1 of the Illinois Code of Civil Procedure.

Requesting Permission from the Court

Before you can serve someone electronically, you must petition the court. In this petition, you must meet the requirements of Section 2-203.1 by filing an affidavit that explains:

• What you did to try to find the defendant
• The extent of your investigation
• Why usual methods of service (like personal service) are impractical

Your affidavit also needs to show that you made a diligent effort to locate the individual and that reasonable attempts at service have failed.
See 735 ILCS 5/2-203.1; O’Halloran, 2013 IL App (1st) 113735, ¶ 32.

Showing the Court That Electronic Service Will Reach Them

You must also provide another affidavit explaining why you believe the defendant/respondent:

• Has recently used a specific email address,
• Has recently used a specific phone number, or
• Has an active social media account on the platform you want to use for service

This requirement comes from Illinois Supreme Court Rule 102(f)(2).

After the Court Gives Permission

Once the judge approves your request:

• You have 10 days to send the summons and required documents.
  IL S. Ct. Rule 102(f)(3)
• You must then file a proof of service as directed by the court.
  IL S. Ct. Rule 102(f)(4)

How Service by Social Media Works

Illinois Supreme Court Rule 102(f)(1)(A) specifically explains how to serve someone through social media. You must:

1. Send a direct message to the defendant/respondent on an active social media profile;
   ii. Attach the summons, complaint/petition, and all other required documents; and
   iii. Include the following statement in the message:

“Important information, you have been sued. Read all of the documents attached to this message. To participate in the case, you must follow the instructions listed in the attached summons. If you do not, the court may decide the case without hearing from you, and you could lose the case.”

Service by Email or Text Message

Under IL S. Ct. Rule 102(f), service by email and text message is permitted in the same way. You must send the required documents to the specific cell phone number or email address approved by the court.

Step 4: Proceeding with a Default Divorce

A default divorce occurs when one spouse doesn’t participate in the divorce proceedings either because they cannot be found or they choose not to respond. In these cases, the court may proceed without the missing spouse as long as all legal requirements are met.

Requirements for a Default Divorce Proceeding:

1. The petitioner properly files and attempts to serve the respondent
2. The respondent has 30 days to respond and file an appearance
3. The petitioner files a Motion for Default
4. The petitioner sends notice of the Motion for Default to the respondent
5. The court schedules a prove-up hearing to finalize the divorce

Once these steps are complete, the court can grant the divorce even if the missing spouse never participates.

Divorce is challenging enough on its own, navigating it when you can’t locate your spouse adds an extra layer of complexity. Having an experienced family law attorney by your side can help ensure every step is handled properly and efficiently.

If you’re facing this situation, contact O. Long Law LLC. Our team can guide you through the process and help you move forward, even if your spouse cannot be found.