How To Serve Divorce Papers When You Cannot Find Your Spouse in Arizona
To file for divorce in Arizona, you generally must provide your spouse with legal notice of the divorce petition. This typically involves physically handing them the paperwork, but when you don’t know where they are or how to reach them, adhering to that requirement can feel like a roadblock to moving forward.
If you’re wondering how to serve divorce papers when you cannot find your spouse, you aren’t stuck staying married. Arizona law includes provisions for this situation.
Although you’ll need to take some additional steps, under certain circumstances the court will allow you to use another method of service when standard service isn’t an option. It can help to consult a divorce attorney if you’re dealing with a missing spouse, so you can take the right steps and reduce the risk of delays.
You Can Still Get Divorced When Your Spouse Is Missing
Normally, once you file for divorce, you hand your spouse the paperwork, they respond, and the case proceeds. But you can’t hand papers to someone you can’t find. A missing spouse doesn’t mean you’re out of options, though.
Divorcing someone who seems to have fallen off the map can make an already complicated situation more difficult, especially when the marriage involves minor children, real estate, retirement accounts, substantial debts, or a request for spousal maintenance. If your spouse can’t be found, however, you may need to take additional steps before the court can address the divorce and other issues involved in your case.
These requirements matter because service is designed to give the other spouse a fair opportunity to know about the case and participate. The process just looks a little different than a typical divorce.
Start by Filing the Divorce Petition
Before any of the missing spouse rules kick in, you still have to file a divorce petition and other required paperwork with the Superior Court in the county where you live. Filing that petition starts the clock on the window to complete service, so it helps to move on to the next steps fairly quickly rather than letting the case sit.
Usually, that means arranging proper service through an approved method, typically involving a process server delivering the paperwork to your spouse at home or work. If your spouse has moved without leaving a forwarding address or simply can’t be located, you must make reasonable efforts to locate the missing spouse before the court will allow a different form of service.
That doesn’t mean you have to conduct an endless search. The goal is to make reasonable search efforts and keep records showing what you did to serve divorce papers when you cannot find your spouse.
What Constitutes Due Diligence?
It’s worth noting that what qualifies as reasonable in the eyes of the court can depend on the circumstances. You can’t just tell a judge “I looked around and gave up.” The court will generally want evidence that you made reasonably diligent efforts to determine your spouse’s current address.
In practice, this could involve hiring a private investigator or skip tracer to use available information to identify their current location. The search may involve information connected to previous addresses, public records, or other databases.
Before starting the search, gather as much information as possible about your spouse. Some of the information that can help an investigator or process server know where to look includes:
- An old address
- A previous employer
- A phone number
- An email address
- Names of relatives and known associates
Even seemingly outdated information may help connect your spouse to a newer address or contact method. Keep records of the information you provide and the steps taken to locate the person. That documentation can matter if you later need to show the court that you made reasonable efforts.
Keep copies of relevant records of search dates, addresses checked, returned mail, unsuccessful contact attempts, and information provided to a professional searcher; these can help establish what was done.
If the search comes up empty, an investigator can prepare an affidavit describing these attempts and why they didn’t pan out. The affidavit shows the court why you needed to use publication and what you did to try to find your spouse. If the required paperwork is missing, you may have to take additional steps before the court accepts the service.
If the search does locate your spouse, the case can usually return to the standard service process. However, finding an address doesn’t necessarily mean the spouse has to cooperate with the divorce. They still have the right to respond and participate in the proceedings.
When Alternative Service May Be an Option
Once you’ve shown the court a genuine, documented effort to find your spouse, you may be able to request a court order allowing another method of service. Arizona distinguishes between alternative means of service and service by publication. If ordinary methods, including available alternative service, are impracticable, the court may authorize service by publication when the requirements of Rule 41 are satisfied.
What Is Service by Publication?
Service by publication is a separate method used in qualifying cases when other available methods of service are impracticable. Instead of physically handing over the papers, you publish a notice in accordance with specific requirements set by Arizona law.
After publication is completed, you must file the required paperwork showing that the notice was published as ordered. Once the applicable response period has passed without a response, you may be able to submit an Application and Affidavit of Default. This step tells the court that your spouse had the opportunity to respond through the published notice but didn’t.
You can then request a default hearing, during which the court may consider whether the requirements for service by publication were satisfied and whether it can grant the requested relief. If the requirements for a default are met, the judge can enter a divorce decree by default.
That said, there are still limits. Service by publication doesn’t automatically prevent the court from deciding issues such as property division, spousal maintenance, or other matters. The court can consider the requests in your petition and the evidence presented at the default hearing before deciding what orders to enter.
What if Your Spouse Is Avoiding Service?
If your spouse isn’t actually missing but is deliberately avoiding service, the process is different. Service by publication isn’t always appropriate when the person can actually be located. Instead, the petitioner may need to make additional service attempts or seek an appropriate alternative method from the court.
A process server may be able to document attempts to make contact. That information can be useful if you later request alternative service because attempts to serve continue to be unsuccessful.
When It Makes Sense To Get Legal Help
Figuring out how to serve divorce papers when you cannot find your spouse adds an inconvenient and frustrating element to what’s already a complex process. Nobody wants a missing address to derail an entire divorce.
However, you need to take your time and move carefully to keep things moving forward. That means avoiding common mistakes like:
- Not making reasonable efforts to locate your spouse before asking for publication
- Publishing notice without first obtaining the necessary court order
- Using the wrong publication
- Failing to complete the required follow-up paperwork
- Assuming that a spouse’s refusal to cooperate gives automatic permission for any alternative method of service
- Missing deadlines
The most practical approach is to identify the appropriate service method for the circumstances, document the steps taken, and follow the court’s instructions closely. A single misstep, like an incomplete affidavit or a missed filing window, can set your case back.
An experienced Arizona family law team can review your circumstances to help you understand the service rules that may apply and prepare the required filings. They can also help you show due diligence, so that the court recognizes you have done your best to move the situation along on your own.
Legal guidance can be especially useful if your spouse has been gone for a long time or is living outside Arizona. There may also be significant property or child-related issues involved that make the situation more sensitive than usual. An experienced attorney will be prepared to answer questions about divorce and explain how the service requirements may affect your case.
Lincoln & Wenk Can Help You Understand Your Options
If you’re filing for divorce and can’t locate your spouse, you don’t have to sort through the paperwork and deadlines on your own. Let Lincoln & Wenk review your situation and explain the service options that may be available in your case. To discuss your Arizona divorce, contact Lincoln & Wenk at (623) 294-2464. Every case is different, and the appropriate approach depends on factors such as what efforts have already been made to locate your spouse and whether children or property are involved. Our experience means we treat each case with the same level of discretion and attention to detail.