Can I Be Divorced & Not Have Papers?
By Beverly Bird
In some circumstances, it’s possible that you could be divorced and not even know about it because you never received a final decree. Different events would have to dovetail for this to occur. If they have, you can usually find out if you're divorced by doing a little detective work.
If and when your spouse filed for divorce, he was legally obligated to let you know about it. This is due process, and it involves him officially serving you with a copy of his divorce petition. This is usually accomplished by having the sheriff or a private process server deliver the papers to you. If your spouse didn’t know your whereabouts, it’s possible that he petitioned the court to permit him to serve you by publication instead. Rules regarding this process vary from state to state. In some jurisdictions, he would be required to publish notice of your divorce in a newspaper that serves the county where he filed for divorce. In others, the court might instruct him to use the newspaper serving the area of your last known address. It might be like looking for a needle in a haystack, depending on how long ago you think he might have filed for divorce, but you can contact the legal departments of any such newspapers to find out if your spouse ever ran such a notice.
If your spouse served you by publication and you never responded, it’s likely that you’re divorced. He probably went ahead and got a divorce without your participation by requesting a default decree. Courts won’t force spouses to stay married because they can no longer find the person they married. They’ll issue the decree without your involvement, often giving your spouse whatever he asked for in his petition. By law, he is also supposed to serve you with a copy of the decree when this occurs. However, if he did not know where to send it to you, this couldn’t have occurred, so you could be divorced without knowing it.
Participating in the Divorce
Your spouse might have served you with a copy of his petition, and you believe you participated in the divorce. You might even have filed an answer to his petition and appeared in court so a judge could decide issues between you. In most states, courts do not issue a divorce decree immediately at the end of trial. The judge must have time to write it and to memorialize his decisions in the final order. Depending on your state and how busy the court is, this could take weeks or months. If you move without a forwarding address during this time, the court will send the decree to the last address you had on record. You might never have received it. Some states, such as Washington, do not mail decrees. You must maintain contact with the court and pick up a copy when it’s ready. If you failed to do so, you’re divorced, regardless of whether you have a decree in your possession.
Binding Effects of Decree
If you're divorced, the terms of the decree are binding on you, even if you don’t know what they are. Some states, such as Utah, will only make custody decisions and grant the actual divorce in default proceedings, so you may not have to worry if you lost property or are obligated to pay support. However, this is not true in all jurisdictions. If you think it’s possible that you’re divorced, do everything possible to locate the decree. You can contact the court or the department of public records in the area where your spouse most recently lived, or where your divorce proceedings took place. Both would have a record of the divorce and will help you get a copy of the decree.
- USLegal: Divorce by Publication Law & Legal Definition
- Clerk of the Superior Court’s Office, Maricopa County, Arizona: Frequently Asked Questions
- King County Judicial Administration: “Do it Yourself” Marriage Dissolution Guidelines
- Utah Legal Clinic: Summary of Utah Divorce Law
- Womans Divorce: The Steps of Divorce – Answers From the Expert
- California Department of Public Health: Obtaining Certified Copies of Marriage and Divorce Records
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.