At Gordon & Perlut, LLC, we understand that divorce is challenging enough without the added stress of not knowing where your spouse is. Many people believe that divorce cannot proceed unless both parties are present, but Illinois law provides a process for these difficult situations. If you have made every effort to locate your spouse but cannot find them, you may still be able to move forward with your divorce.
Illinois allows for divorce even when one spouse is missing. Under 750 ILCS 5/401, the court can dissolve a marriage if one spouse files a petition and the marriage is considered irretrievably broken. Normally, both parties must be notified of the proceedings. However, when a spouse cannot be found, Illinois law allows for service by publication under 735 ILCS 5/2-206.
Service by publication is a process that lets you notify your spouse through a newspaper or other approved publication after you have made diligent efforts to locate them. The court requires proof that you made reasonable attempts to find your spouse before granting permission to serve by publication. This may include:
Once service by publication is approved and completed, the court can proceed with the divorce even if your spouse never responds or appears.
A divorce finalized through service by publication allows the court to legally end the marriage. However, certain issues may not be resolved without your spouse’s participation, such as division of property, allocation of debts, spousal support, child support, and custody. Courts typically require personal service or your spouse’s appearance to make binding decisions on these matters.
This means you can end the marriage, but you may have to address financial or custody issues later if your spouse resurfaces.
The process for divorcing a missing spouse is complex and requires strict compliance with Illinois rules for due process. Any mistakes in filing or service could delay your case or cause the court to dismiss it. Working with experienced attorneys ensures you follow all necessary steps to protect your rights and obtain a valid divorce judgment.
Courts expect you to take reasonable steps to locate your spouse, such as checking past residences, contacting known relatives or friends, searching online, or using public databases. You may also hire a private investigator. Documenting all your efforts is essential for the court to grant service by publication.
The notice must be published in a newspaper approved by the court once a week for three consecutive weeks. After publication, the spouse has a set period to respond, usually 30 days, before the court proceeds with the divorce.
In most cases, custody orders require personal service to the other parent. The court may issue temporary orders if the child’s safety is at risk, but final custody determinations often need your spouse’s participation or confirmation of proper service.
Generally, the court cannot divide property, debts, or award spousal support without personal service. These issues may be left unresolved until your spouse is found and properly served.
Yes. Once the court grants a divorce through service by publication, your marriage is legally ended in Illinois. If your spouse later appears, they cannot undo the divorce, although unresolved matters may then be addressed.
If your spouse comes forward before the divorce is finalized, you can proceed with a standard divorce process where they are personally served, and all issues can be addressed in court.
At Gordon & Perlut, LLC, we help clients across Chicago and throughout Illinois handle complex divorce cases, including those where a spouse cannot be located. Our experienced attorneys can guide you through the process, ensure all legal requirements are met, and help you secure a valid divorce judgment.
Contact our Chicago divorce lawyers at our Chicago office at 312-360-0250 or our Skokie office at 847-329-0101 to arrange a free consultation. We are here to protect your rights and help you take the next steps forward.