How to File for Divorce With a Missing Spouse in California
By Teo Spengler
Updated March 28, 2020
It takes two to marry, but only one to divorce. In California, either spouse may decide to call it quits, with or without the approval -- or presence -- of the other person. Whether your spouse opts to play the ostrich at home or fly the coup, the fact of his absence will not stop the court from dissolving your marriage if you follow the correct procedural steps to provide notice that you have filed for divorce. After you give the proper notice, you may proceed to obtain a default judgment for divorce from a missing spouse.
You begin your divorce case in California in the same manner, whether your spouse lives next door or has taken off for Tahiti. Like many states, California requires you to use specific court forms to start a divorce action. These include the Petition (Form FL-100), where you list the facts of your marriage and what you seek in the divorce, and Summons (Form FL-110) that mandates your spouse's response. Check with the family law court clerk to see if your county requires additional local forms. When you file your paperwork, the clerk keeps the originals and returns two copies to you, each stamped as filed. The next step is to give your spouse notice of the case.
Service of Process
Service of process means giving a person official notice that he is a party to a lawsuit. In California, you are obliged to serve your spouse in one of several allowable ways before you proceed with a divorce. In an amicable divorce, a spouse simply accepts the papers -- personally delivered or through the mail -- and signs an acknowledgment of service. Otherwise, you generally will have to serve the divorce papers by arranging for an adult to personally hand them to your spouse. The adult who serves the documents can be a friend, paid process server or county sheriff. After she has completed service, the server must provide the details to the court under oath. If your spouse attempts to avoid process by refusing to answer his door, the process server can hand him the papers as he is leaving for work or take them to him at his workplace.
Read More: Rules for Process Servers
If the person attempting to serve your spouse with the divorce papers stops by his home or office at least three different times without finding him there, she can leave the papers for him with an adult who lives at the home or an adult who appears to be in charge of the office. This is called substituted service. The process server must tell the person that the papers are important legal documents for your spouse. Once that is accomplished, she fills out and signs the Declaration of Due Diligence form, listing all her attempts to locate your spouse, and a Proof of Service form, telling the court the name or physical description of the person to whom she handed the divorce papers. Both must be signed under penalty of perjury and filed with the court.
Service by Publication
Service by publication is a method of last resort to advise your spouse that you have brought a divorce action. It is used when you have tried other methods of service but were unable to locate your spouse after doing everything possible to find him. For this type of service, you must publish the divorce summons and complaint in a newspaper serving the region where he is most likely to be found. Before you can use this type of service, you must convince the court that you tried as hard as you could to find your spouse.
Procedure for Service by Publication
Check with the court to determine what steps you must take to find your spouse before the judge will authorize service by publication because different courts require different levels of proof. You need to record all of your efforts in detail on a document entitled “Declaration of Due Diligence.” You must sign the document under penalty of perjury. The court will provide the required forms to ask court permission to serve your spouse by publication. If the court signs the order allowing service by publication, arrange with a newspaper of general circulation to publish the document for four consecutive weeks. The newspaper provides an affidavit telling the court when the divorce documents were published.
Service by Posting
If you do not have sufficient funds to arrange for service by publication for your missing spouse, you can ask the court to permit service by posting. In this type of service, the court clerk posts the summons and complaint in the courthouse. To get permission to use service by posting, you provide the court with the same proof as for service by publication, but you also must show the court that you qualify for a court waiver of fees and costs. Proof that you are receiving public benefits is enough; otherwise, you must fill out financial forms to establish that you do not have sufficient revenue to cover court fees after paying basic living expenses. As with service by publication, you must obtain court permission by filing a motion and proposed order; generally these forms are available at the court clerk's office.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.