While Indiana is a no-fault divorce state, which does not require your spouse’s permission or consent to get a divorce, notice of divorce proceedings must still be provided. Normally, this would be accomplished by having the Sheriff’s Department personally deliver a copy of the divorce petition, along with a summons, to your spouse’s residence. The process of providing notice by delivery of the petition and summons is referred to as service. Service can be complicated by the disappearance of a spouse. This blog discusses the different manners of service and how it can be obtained when you do not know where your spouse lives.
The Indiana Rules of Trial Procedure describe how service is to be made in various situations. Rule 4.5 provides that service upon an individual who cannot be found, has concealed their whereabouts, or has left the state can be made under Rule 4.9. This rule simply refers us to Rule 4.13, for service requirements when you do not know where the person being served lives. Rule 4.13 allows a party to serve a summons by publication. Service by publication requires following a simple procedure. (1) The summons to be published, a request to serve the summons by publication, along with affidavits that a diligent search for the party to be served has been made, and they cannot be found, must be submitted to the court. (2) Once the summons has been signed by the Sheriff or Clerk, it can be published in any newspaper authorized to publish legal notices, in the county where your divorce has been filed or the county in which your spouse was last known to reside. (3) The procedure for submitting a summons for publication varies by county and newspaper. All newspapers charge a fee for publishing service. Once the fee is paid, service will be published three times, with the last two times being 7 to 14 days apart. (4) After the summons has been published three times, the newspaper will send an affidavit of publication to the court or to your attorney for filing with the court. Service is then complete, and you may proceed with your divorce, even if your spouse never responds to the summons.
When a party does not respond to a summons, a default judgment may be entered against them. In the case of a divorce, this means that the court will issue a decree dissolving the marriage, dividing marital property, and if there are any children of the marriage, making custody, parenting time, and child support determinations. While you may obtain a divorce by default judgment, complications can arise if the defaulted party was served by publication and later claims they had no actual knowledge of the judgement or proceedings. Therefore, it is crucial that before serving your spouse by publication, you make an honest effort to locate and serve them personally.
If you are simply unaware of where your spouse lives, but know where they work, you may have them served personally or by certified mail, with return receipt requested, at their place of employment. The Sheriff’s Department can personally serve your spouse, but in some counties will not do so at a place of business. You can call the Sheriff’s Department in the county where your spouse works to determine if it will serve your petition and summons at your spouse’s place of employment. Individuals and companies called process servers also offer personal service for a small fee. Be aware that if serving your spouse personally at their place of employment, the person providing service cannot be a party to the action and must be at least 18 years of age. You should consult with an attorney before having anyone other than a professional process server deliver court documents to your spouse, as return of service documents will need to be filed after your spouse has been served and other rules or restrictions may apply to personal service in your situation.
Obtaining a divorce when your spouse has disappeared, and you do not know where they live or work can be complicated by trial rules and the requirement of a diligent search before service by publication can be made. If you are wanting a divorce but do not know where your spouse is, the attorneys at Ciyou & Associates, P.C. can help. This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.
