November 16, 2017

Can I go through a divorce without my spouse?

On a few specific occasions, divorces may occur without the presence of one of the parties. Sometimes one of the spouses is in the military, sometimes a spouse is incarcerated, sometimes a spouse is missing. However, the absence of one spouse does not make it impossible to carry out a divorce.The first step to filing a divorce is filing the petition. This signals to the Court that at least one party in a marriage desires a divorce. Once the Court has notice, the next person to be notified is the other spouse.  Generally, that person receives notice upon being personally served the Petition for Dissolution. So long as the other party receives notice, a divorce will continue.

Inability to Serve

Sometimes it is incredibly difficult to get service on a person because there has been no contact with that person for some time. If you’re unable to find a person, the Court won’t penalize you and force you to stay married to that person. What the Court will require you to do is give a reasonable attempt for service. If you are unable to achieve personal service, the next reasonable attempt is to try service through publication. Basically what that means is you publish something like an advertisement with the chance that the person needing to be served sees it. After an attempt at service through publication fails, the Court will typically let the other party proceed with the divorce.

Military Service

If one of the spouses in the military and is expected to deploy at some point during the divorce process, that does not necessarily halt the process. A military member may always invoke the Servicemember’s Civil Relief Act. In short, the Servicemember’s Civil Relief Act allows a servicemember to put any civil proceedings on hold should they be deployed or unavailable due to military orders. In my experience, some spouses invoke that while others choose to proceed regardless. Proceeding is not impossible, especially if the parties come to an agreement. The Courts are also lenient when it comes to allowing the military spouse to appear by telephone for Court hearings.


What if your spouse is incarcerated? Again, this is not impossible. The Courts will not force anyone to continue to be in a marriage when one party is currently incarcerated.  In fact, achieving personal service on an incarcerated individual is actually easier because you know exactly where that person is, a corrections facility. The Court treats this situation just the same as any other situation. The incarcerated spouse may actually be called to the Courthouse for the hearing.


Lastly, what happens if you get service on the other party, but they just disappear? This is not entirely uncommon. Sometimes people are either in denial about the divorce, or they just want nothing to do with it. The Court will proceed without them so long as there is some sort of service or attempt of service. I have done a few hearing where it is only my Client and myself. Most of the time the Court will order what we request in a default manner, unless we are requesting something totally off the wall.

It is not impossible to proceed through a divorce with only one party. At the beginning it could throw a hitch in the process, but only a temporary one. If you have any questions about proceeding without a spouse, give us a call!

Christopher Nicolaysen is a Family law Attorney who practices in Colorado Springs, CO. He graduated from Denver Sturm College of Law, and has been practicing law for several years now. Christopher Nicolaysen is passionate about helping you solve your family matters. Learn more about his experience here.

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