Today, we’re going to be talking about getting a divorce from a person when the person you are trying to divorce cannot be found. Sometimes somebody will come to my office and they’ll ask about getting a divorce when they can’t actually find their former or soon to be former spouse. They may have moved away or spouse trying to find moved away. Sometimes you cannot actually find the person trying to divorce and when that happens the person has to be served using a very special procedure.
What the person has to be served by is what’s known as a publication. If you’ve ever seen a newspaper and in the legal parts of the paper, there will be a place where it shows such and such person is placed on notice about some sort of action pending in the blank court of blank county and so what will happen is they’ll actually be served by the publication.
What Steps Do You Need To Take Before The Publication?
Before you do the publication process, you have to make sure that you are able to sign an affidavit under oath. You are stating that you have used diligent efforts to try to find the person. When you go to the circuit clerk’s office and sign under oath, that’s going to be the important requirement needed for you to get the order of publication. You swear under oath that you cannot find this person. You get an order of publication.
You take the order of publication to the newspaper. The newspaper publishes it for two consecutive weeks. Then after the two week run in the newspaper, you’re going to go before the court for the divorce hearing. Those are the really basic parts of this. It can be tricky to make sure that it gets done in the right way. After you’ve done the publication and the proper amount of time has passed for you to go to court, then you go to court and you have to present your case to the judge.
What are the Two Non Fault Grounds For Divorce?
There are two non fault grounds for divorce in the state of West Virginia. As we’ve talked about before, there’s what they call irreconcilable differences and they’re separate and apart for a year. The courts will generally require you to have both people in the divorce process agree to irreconcilable differences. What you would have to do is have to either get it on separate and apart for a year or fault based grounds.
Now the fault based grounds are oftentimes very difficult to get. I’ve got the fault based grounds for a divorce when a person cannot be found before, but usually the easier way to go about it is you get it based on separate and apart for a year because most of the time, quite frankly, whenever somebody comes to us in that situation, the person just cannot be found and it’s been an extended amount of time. It might be a year or two since the person was actually found.
Once you go to court, you, you prove separate and apart for a year. However, the important part is, under the law, you have to have what we call a corroborating witness to testify that you’ve been separate and apart for a year. It’s very important that you have the person and it’s also important that you know that some judges take the position that if the person does not have a verified financial statement to present, that might be able to be brought up later on.
I’ve never seen that happen, but that there’s not some possibility that financial matters could be opened up in the future even though you’re technically awarded a divorce. The other thing that’s really hard sometimes is that you don’t know what the financial circumstances were, let’s say 10 years ago. That’s sometimes a complicated issue but regardless, you should be able to get a divorce even when the person cannot be found, you just have to make sure that all of the proper procedures are followed. With some of these things talked about today, now you’ll be a little better prepared if in this situation now or in the future.
