I Want To Get A Divorce, But Don’t Know Where My Husband/Wife Is. What Can I Do?

This happens surprisingly more than you would imagine.  Sometimes, people grow apart and then they move apart, but never bother to legally separate or divorce.  Time passes, addresses change, and then, usually, one of the parties wants to get remarried.  As most people know, you have to personally serve the other party with a Summons and Complaint to initiate divorce proceedings.  But how do you serve someone if you don’t know where they are?  The answer is: service via publication.

First, you have to make reasonable efforts to find him, and inform the Court that your process server has tried to locate the person.  My process server gives me an affidavit informing the Court of the steps he has taken to locate the person.  You attach the affidavit to an ex parte (one sided) application for service via publication.  When the Judge signs the Order, you then must publish a notice in a periodical of your choice (I like to use Nevada Legal News), once per week for four weeks.  At the end of four weeks, the other party is considered “served” and the 20 days he has to respond commences.

If 20 days runs, and you have not heard from that person, then you begin default proceedings.  People often ask: how long will it take?  I even had a client once come into my office with a wedding planned in 30 days.  I told her to move her wedding immediately.  This process takes a long time because there is a lot of red tape to cut through.  It takes about two weeks to get the affidavit from your process server, then about another two weeks to get the Order for Service Via Publication, then you have to Publish for four weeks, then the 20 day period runs, then it takes about another 2 weeks to go through the default process.  All in all, you’re looking at about three-and-a-half months in the best case scenario, so plan accordingly!

What Happens If The Other Side Doesn’t Respond To My Complaint For Divorce?

A party has 20 days beginning the day after he is served with a Complaint and Summons to file a responsive pleading, such as an Answer or a Motion.  If that party doesn’t respond in 20 days, you can initiate default proceedings.  If the party has an attorney who has made an appearance (even a phone call or email counts as an “appearance”), or if the party himself has communicated with you or your attorney, the you have to send a Three Day Notice Of Intent To Take Default.  This puts the other side on notice that you’re about to proceed without him.  If three days pass and you still don’t hear anything, you can proceed on the Default Application.

If, however, you haven’t heard a peep out of the other side and 20 days has passed, then you can send the Default Application directly to the Clerk.  When it is returned signed and stamped from the Clerk, you have to file it, and from this point on, you need not serve the other side with any documents, or give notice of any hearings to the other side.

The next step is to request a prove-up hearing in your department.  This is where you and your attorney go into court and make a record of all of the items that are put into the Decree of Divorce.  You still need to file a Decree with the Court to memorialize the record of the prove-up hearing.  And, Voila, you’re divorced.

The next question is: can the other party undo this process?  The answer is: yes, within reason.  If the other party has a legitimate reason why he couldn’t respond (such as he was in the hospital and didn’t know about the proceeding), then he can file a Motion to Set Aside Default Judgment.  Now, he doesn’t have forever to do this.  It must be done in a reasonable time and a reasonable fashion.  At which point, you are back where you started, and he will have 20 days to file a responsive pleading to your Complaint for Divorce.