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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.

Client Reviews
Peter has integrity, and values his relationships with his clients beyond his financial relationship with them. For me to say this about any lawyer is really saying something. He is compassionate, straightforward and knowledgeable. I would easily recommend him to anybody. Lewie W.
Peter Van Aulen handled my case with great diligence and integrity. He is also a compassionate individual who realizes what a difficult time divorce can be emotionally. Peter works hard and doesn't take any shortcuts in preparing for a case… I highly recommend Mr. Van Aulen and his staff. Chuck Solomon
Peter is an exceptionally great attorney. He handled my child custody case and was able to ease any of my concerns with honest answers. He always took the time to explain the pros/cons and was always available to answer any questions that I had… I would highly recommend this attorney to anyone who is looking for one. Jessica Cruz
Peter Van Aulen is a very compassionate, honest and straightforward person. He was there for me at my lowest point with a genuine concern not only for my situation, but for me and my child's well being above all… He is fair and he is strong and when push comes to shove he is there for you. Cathy Dodge
Our cousin used Peter's law office to help with a sticky custody situation. He was extremely responsive, very nice and most importantly did an awesome job with the court! He is awesome. Lawrence Polsky

*Results may vary depending on your particular facts and legal circumstances