Marriages end for all sorts of reasons. Some people drift apart…and some people really drift apart. So far apart that they don’t even keep in any kind of contact anymore. This ongoing separation can last for years and it becomes impossible to find your husband or wife. In such cases, how do you divorce your spouse when you don’t know where your spouse is?
The Requirement of Notice In An Illinois Divorce
The reason why it’s important to know the location of your spouse during a divorce is because of notice. The Due Process Clause of the United States Constitution requires that everyone get proper notice of any court action. It just makes sense that it is only fair that people, at the very least, know if they are a defendant in a court case.
After the filing of a divorce in Illinois, you must provide some kind of notice to the other party in the marriage.
“After the filing of the petition, the party filing the same shall, within 2 days, serve a copy thereof upon the other party, in the manner provided by rule of the Supreme Court for service of notices in other civil cases” 750 ILCS 5/411(b)
Service usually involves personally handing the summons and the complaint for the divorce to the other party. Doing so puts them formally “on notice.”
Service By Publication In An Illinois Divorce
If you can’t find your spouse, then Illinois law affords you a different method of service called “Service By Publication.” The procedure to serve someone by publication in Illinois is as follows:
“[P]laintiff or his or her attorney shall file, at the office of the clerk of the court in which the action is pending, an affidavit showing that the defendant resides or has gone out of this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him or her, and stating the place of residence of the defendant, if known, or that upon diligent inquiry his or her place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper published in the county in which the action is pending.” 735 ILCS 5/2-206
Cook County courts require you to use this form here to swear that you cannot find your spouse before publishing the notice of your divorce.
Once you’ve filed the form you can present the form to the publisher. In Chicago, Illinois we almost always use The Chicago Daily Law Bulletin.
The publisher will know what do as they publish dozens of these every day. But you’re going to have to wait.
“Period of Publication – Default. The notice required in the preceding section may be given at any time after the commencement of the action, and shall be published at least once in each week for 3 successive weeks. No default or proceeding shall be taken against any defendant not served with summons, or a copy of the complaint, and not appearing, unless the first publication be at least 30 days prior to the time when the default or other proceeding is sought to be taken.” 735 ILCS 5/2-207
So, the newspaper needs to publish the notice for a 3 week period and you can only ask to default your spouse 30 days after the first date of publication.
Service by publication is not that simple. Defendants/respondents in an Illinois civil case are entitled to the best possible notice of any pending lawsuits against them. So, you can only have service by publication when actual physical service is impossible. Bell Fed. Sav. & Loan Ass’n. v. Horton, 376 N.E.2d 1029, 1032 (I11. App. Ct. 1978)
So, signing off on the affidavit is not enough. If you are serving your spouse by publication, you are getting a default divorce. The statute requires that a judge ask you if you really, truly can’t find your spouse in the case of a default by publication.
“[I]n no case of default shall the court grant a dissolution of marriage or legal separation or declaration of invalidity of marriage, unless the judge is satisfied that all proper means have been taken to notify the respondent of the pendency of the suit. Whenever the judge is satisfied that the interests of the respondent require it, the court may order such additional notice as may be required.” 750 ILCS 5/405
If there are kids involved in your divorce and the other parent lives out-of-state, the Illinois statute again requires that you do your best to actually, physically serve the person and you can only resort to publication if you cannot truly locate the other parent.
“Sec. 108. Notice To Persons Outside State.
(a) Notice required for the exercise of jurisdiction when a person is outside this State may be given in a manner prescribed by the law of this State for service of process or by the law of the state in which the service is made. Notice must be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.” 750 ILCS 36/108(a)
So, you will still have to prove that you exercised due diligence and due inquiry as to your spouse’s location before an Illinois court will grant you a divorce when there has only been service by publication. Home State Sav. Ass’n. v. Powell, 392 N.E.2d 598, 599 (I1. App. Ct. 1979)
The required “due diligence” and “due inquiry” are specific to each case. City of Chicago v. Logan, 205 N.E.2d 795, 797 (Ill. App. Ct. 1965).
Practically, speaking the level of diligence changes every year because of the numerous ways that are always being invented to keep track of people. Questions you can expect from a judge as to your “due diligence” and “due inquiry” in locating your spouse include:
- Did you go to your spouse’s last address or at least mail something there?
- Have you Googled your spouse?
- Have you searched for your spouse on Facebook?
- Have you been in contact with your spouse’s parents or siblings? You better also not know where your spouse’s family is or your spouse’s location is also unknown to his family.
Your search for your spouse has to be real. Even your divorce lawyer will make sure your search was real.
Your divorce attorney needs to verify that your search is real. Your affidavit for publication requires your divorce attorney to make a reasonable inquiry into the veracity of any document filed with the court otherwise your divorce attorney could face sanctions.
Of course, your spouse could somehow decide to pick up a copy of The Daily Law Bulletin and peruse the “Legal Notices” section, see their name and file an appearance and answer. I wonder if this has every happened?
How A Divorce By Publication Is Different Than a Divorce With Personal Service
An Illinois divorce by publication is an “in rem” proceeding.
“In rem” is latin for “against the thing.” The “thing” in the case of a divorce is the marriage.
“In rem” is to be distinguished from an “In personum” proceeding.
“In personum” means “against the person.” The “person” in the case of a divorce is the respondent…your spouse.
In contrast, to enter a child support or maintenance/alimony order and/or a disposition of marital property against a respondent, an Illinois court must have in personam jurisdiction over the respondent. In re Marriage of Brown, 506 N.E.2d 727, 729 (Il. App. Ct. 1987)
So, even if you get a divorce by publication, your divorce is not truly over as to support issues and marital property until the Respondent is personally served.
The distinction between “In Rem” and “In Personum” divorces sounds like a big deal. An In Rem divorce, doesn’t let you divide marital property or get support. Well, the spouse is missing…you were not going to get support even if they were served. Practically, you can do whatever you want with the marital property, the co-owner spouse is not there to say otherwise.
The real problem with an In Rem divorce is that you cannot divide real estate because a transfer real estate with both parties’ names on the deed requires both spouses’ signatures on the quit claim deed.
A court can order that a judge’s deed issue, in lieu of a quit claim deed, if a spouse won’t sign a quit claim deed.
“Whenever an order is entered, directing the execution of any deed or other writing, it shall be lawful for any judge of the court to execute or for the court to direct the sheriff to execute such deed or other writing” 735 ILCS 5/2-1304(b)
An Illinois court may demur and say, “How can I even transfer real estate in an In Rem divorce? I don’t have jurisdiction?”
If the court brings up this jurisdiction argument, you are probably out of luck. But, you can try to use this 70 year old case law: “Service by publication is usually sufficient where the object of the action is to reach and dispose of property, or of some interest in the property, within the court’s jurisdiction. ” Failing v. Failing, 4 Ill. 2d 11, 13 (Ill. 1954).
How Can I Find My Husband Or Wife So I Can Finalize My Illinois Divorce?
If you want child support or alimony, you’re going to have to locate your husband or wife so you can personally serve them with the divorce papers.
In these situations, we pay for a “skip trace.” A skip trace is a service where we trace someone who has “skipped” town. This is really just a search of databases around the country using the name, birthday and social security number of the missing person to approximate where they might be. A skip trace will usually review: Public Records Databases, Loan Applications, Credit Reports, Criminal Background Checks, Job Applications, Courthouse Records, Title Records and Utility Bills.
How We Know Carol Baskin Killed Her Husband Because Of Divorce By Publication
As a humorous aside, if you’re reading this, I presume you joined the rest of America in watching “Tiger King” on Netflix during the COVID-19 crisis.
If Carol believed her husband was in Costa Rica, as she claimed, but couldn’t locate him, Carol could have just served him by publication as described above.
If Carol Baskin would have published her divorce by publication, she wouldn’t have had access to either her husband, Don Lewis’s, marital or non-marital property.
Carol waited until her husband could be declared officially dead so she could take advantage of the probate laws of Florida where she just inherited everything.
Carol knew Don Lewis would never reappear to claim his marital and non-marital property because Carol had, earlier, fed Don to the tigers.
If you’d like to discuss divorce by publication in Illinois and/or Carol Baskin’s obvious murder of her late husband, Don Lewis, contact my Chicago family law firm for a free consultation.