Surprisingly, this situation comes up with some frequency. A couple separates, they lose contact, and never actually get divorced. Sometimes it is a cost issue. Occasionally, one spouse supposedly is "taking care" of getting the divorce and now cannot be located. The other spouse then finds out years later that he or she is not actually divorced (usually when a creditor comes calling). Normally, you need to know where the other spouse is located in order to serve that person and proceed with the case. When you do not know where the other spouse is living, you can still use constructive service.
Constructive service can be effected by requesting the circuit clerk appoint a warning order attorney. To request a warning order attorney, you (or your attorney) must file an affidavit stating the last known address of the other party or stating that the other party's address is unknown. The circuit clerk will then appoint a licensed, practicing attorney as a warning order attorney. The warning order attorney is required to make diligent efforts to locate the other party and inform him/her of the pending divorce action. The warning order attorney is required to report his efforts to the court within fifty (50) days of the appointment. Once the warning order attorney report is filed with the court, you can proceed to seek a decree of dissolution of marriage.
Although the court can dissolve the marriage using a warning order attorney, the court cannot rule on every issue. Generally, the court cannot rule on child custody issues, maintenance, or certain other financial matters unless the respondent actually comes forward to answer the divorce action. Nevertheless, the parties can be returned to the status of single persons, which may be all that you need.
Photo courtesy of Nicolas Raymond
Labels: constructive service, divorce, service of process, warning order attorney