Prosecuting A California Divorce Case When Your Spouse Cannot Be Located

After filing for divorce in California, the law requires that you serve your spouse with the divorce petition to give him or her an opportunity to be heard and participate in the case. In many situations, both spouses have agreed to the divorce and delivering the paperwork is not an issue. But what happens when you have difficulty locating your spouse to serve him or her with the papers?

If you’ve attempted to locate your spouse unsuccessfully, don’t despair as California law provides a solution to that problem. You can petition the court for permission to serve your spouse by publication. Service by publication can only be used as a last resort. To serve a party by publication means that you publish the Summons and all required documentation in a newspaper of general circulation (see below).

The first step in this process is to file a motion with the court requesting alternate service. In California, you generally have to show you’ve made a good faith effort to locate and serve your spouse, by conducting a diligent search for his or her whereabouts. Some of the most common ways to prove you’re attempts include:

• hiring a professional process server

• contacting your spouse through social media

• reaching out to your spouse’s family for information on his whereabouts

• contacting your spouse’s last known employer, or

• performing a skip trace to locate defendant.

The more effort you’ve put into finding your spouse, the more likely it will be that the judge will grant your motion.

If the judge approves your motion, the court will usually outline the steps that you need to take to publish notification in the newspaper. The selected newspaper publication must be in an area the defendant/respondent is known or believed to reside in. California law requires the Summons to be published for 4 weeks in a row, at least once a week. The court may also outline other requirements such as the length, and content of the ad. The court may also identify the specific newspaper(s) to use.

The newspaper will provide you with an affidavit upon completion confirming the Summons was published and a copy of it. The affidavit and publication must be filed with the court. Service by publication will be complete after the 28th day of the first date the document has been published. Your spouse will then have 30 days to respond to the divorce petition.

If you meet the requirements for publication and your husband fails to respond, you can file a motion for a default judgment. A default judgment motion is a process where you tell the court that your husband isn’t interested in the divorce proceedings and you would like the court to grant you what you’ve asked for in your original motion for divorce. The case against your spouse will still proceed except the judge will only hear your evidence.

Please contact Lynx Legal Service at 888-441-2355 with any questions regarding the above issues. Our representatives are standing by to answer any inquiries you may have.