When one party wants a divorce in Virginia, but can’t locate their spouse, divorce by publication is available. Divorce by publication can only happen when the court determines, based on your sworn affidavit, that you have made a diligent effort to find your husband or wife, without success. Service or notice by publication is commonly used in a divorce action to inform a spouse who has disappeared without a leaving a forwarding address.
When the missing spouse cannot be found (and, therefore, cannot be served or notified of the divorce,) you must conduct a genuine and conscientious search to find them. Proof of this search, when unsuccessful, must be included in the file; this proof is called an Affidavit of Due Diligence, which is a sworn statement of your efforts to locate your spouse. If, after conducting the search, you still cannot find them, they may be notified and “served” Publication.
What do I Have to do to Comply with the Diligent Search Requirement?
The diligent search means checking the telephone book and directory assistance in the area where your spouse is last known to have lived; asking friends and relatives who might know the whereabouts of your spouse; checking the post office for any forwarding address; and exploring any other possible sources that might lead to a current address.
In order to be eligible for a “Divorce by Publication”, you must complete and submit an Affidavit of Due Diligence to the court. This is a notarized statement that you have attempted every means possible to locate your spouse, basically proving to the court that your spouse positively cannot be found. The affidavit also must state the last known address where the missing spouse once physically resided in. The affidavit will state that you have visited the address and can confirm your spouse no longer resides in the said address.
How Long Does the Publication Have to Run in a Newspaper?
Once the court is satisfied that your spouse cannot be found, and with your efforts in trying to do so, it will issue an Order of Publication. This is the Order that gives you permission to publish a Notice of your Complaint for Divorce. The notice is published once a week for four (4) consecutive weeks in a newspaper. The court will then provide your spouse an additional twenty-one (21) days to see if they will file a response against your complaint. If there is no response from your spouse after this time, you can to submit the remaining documents and the Final Decree of Divorce to the Court in order to finalize your case.
If you have questions about pursuing divorce while you, your spouse, or both of you are living overseas, contact a Virginia Family Law Center, P.C. toll free at (866) 675-3011 or (703) 537-0444 to schedule your consultation.