How to Serve Divorce Papers When You Can’t Find Your Spouse
April 5th, 2022
Contributor: Zachary A. Gottlieb
Divorce is hard enough — but the process can become even more challenging when your spouse cannot be located. Under Oregon law, a respondent spouse must be served with notice that a divorce action has been started against them. But if they cannot be found after reasonable efforts were taken to find them, a court will likely allow that person to be served in a different way, such as by “publication” or “posting.”
How to Serve Divorce Papers if Your Spouse Cannot be Found
The first step that must be taken to start the divorce process is filing the summons and complaint with the court. These papers must then be personally served on your spouse. One way this can be done is by having a local sheriff or private process server deliver the papers to your spouse at their residence or job. Alternatively, a spouse can sign an Acceptance of Service if they agree to the divorce and waive formal service of process.
If you do not know where your spouse lives in order to serve them, Oregon courts require that you conduct a “diligent search.” Specifically, you must prove to the court that you made a good faith effort to find the missing spouse before you can proceed with a divorce by publication or posting. These methods can be used in cases when you can’t find your spouse and they have not left a forwarding address.
What Proof is Required to Obtain a Divorce by Publication?
Divorce by publication will only be granted if you can prove to a judge that you made reasonable attempts to find your spouse. There are many tools and resources that may be available to find a missing spouse, including the internet and telephone directories. Generally, a spouse petitioning for divorce will need to show the following efforts were taken to locate the respondent:
- Contacting the respondent’s friends or relatives
- Checking with the respondent’s last known employer
- Inquiring with the respondent’s last known landlord
- Referencing telephone directories
- Conducting an internet search
- Checking social media and social networking sites
If your search yields no results, you may also want to look into various databases. You can search the Department of Motor Vehicles database, military records, and the Social Security Death Index. Public court records and the Federal Bureau of Prisons can also be a source of information. In some cases, it may even be necessary to hire a private investigator. Keep careful records of all the attempts you made — you will need to provide the details regarding your efforts to the court.
You should also mail a certified letter to the last known address of the respondent. If it is returned unclaimed, you can submit a sworn statement to the court outlining the steps you took to find your spouse. If the court finds your efforts reasonable, it may grant an order allowing you to publish a notice in the newspaper that you have filed for divorce. Alternatively, a judge may permit you to post a public notice in the courthouse.
What Are the Requirements for Publishing a Divorce Notice?
Under the Oregon Civil Procedure Code, when the court issues an order for publication, the divorce notice must be published in a newspaper of general circulation in the county where the action was filed. If there isn’t such a newspaper within the county, the notice must be published in a newspaper that is most likely to give notice to the respondent spouse. The summons must be published four times over the course of several weeks.
If you know of a location — other than the county where the action was filed — where publication could reasonably result in actual notice to the defendant, you can include a statement in your sworn statement to the court. The court may order publication in that location in addition to (or instead of) the county in which the action is pending.
In the event the court orders alternative service by posting, true copies of the summons and complaint must be posted in a designated location at the courthouse in which the action was commenced.
What Happens if Your Spouse Fails to Respond to the Published Summons?
In most cases, a missing spouse will not respond to an alternative form of service. If 30 days have passed and your spouse has not responded to the summons, you can request a Judgment by Default. In doing so, you are swearing to the court that you did everything you could to locate your spouse, but they failed to appear in the action. If the judge determines that you made a good faith effort to find your spouse, a default judgment may be granted in your favor.
If the respondent spouse later learns that a default judgment was entered, they may make a motion to set it aside within one year from the date of entry. To reopen the case, they must establish that their failure to appear in the action was due to “mistake, inadvertence, surprise, or excusable neglect.” However, under no circumstances will the court grant a request to set aside a default judgment after one year.
Contact an Experienced Oregon Divorce Attorney
Ending a marriage can be emotionally overwhelming — and it can be more stressful if you can’t locate your spouse to serve them with divorce papers. It’s vital to have a knowledgeable attorney by your side who can help you navigate the legal process, regardless of any complexities that arise. At Litowich Law, we are committed to offering compassionate counsel and diligent representation for a variety of matrimonial matters. Located in Salem and serving clients throughout Oregon, we welcome you to contact us for a consultation to learn how we can assist you.