Every year we get three or four cases where the spouse cannot be found. This is a problem because normally notice of the case has to be served on the spouse. Usually a sheriff or a private process server either hands the court summons and the divorce complaint to the spouse or hangs it on their front door.

This is because the general rule in the United States is that a court cannot do anything affecting someone’s rights unless they have notice of the hearing and an opportunity to tell the court their side of the story. Notice and an opportunity to be heard are fundamental rights that everyone in Virginia has. The way the courts handle this situation has two parts.  First, instead of having a sheriff post the divorce summons on the spouse’s door, the Virginia Code allows you to publish a notice in the newspaper.  The law pretends that the spouse reads that newspaper every day and will see the notice.  The second part is that the court will not consider spousal support or equitable distribution of marital property.

All the court will do is decree a divorce terminating the marriage.  Everything else has to be reserved for decision at a later time.  That time probably will never come.  But theoretically the spouse could come back and ask for spousal support and division of marital assets and debts.