Family Law

Ex Parte Divorce: When Only One Spouse Participates

By Kristina Otterstrom, Attorney
Like a marriage, a divorce normally requires that both spouses participate. However, an ex parte divorce allows you to end your marriage even if your spouse fails to take part in the process.

What is an Ex Parte Divorce?

“Ex parte” refers to a legal proceeding that takes place on behalf of only one party. Although you don't need your spouse to participate in an ex parte divorce, it will be valid in every state as long as you follow certain rules.

If you’ve decided to divorce, you're probably eager to separate from your spouse and take the necessary steps to end your marriage and begin your new life. But if your spouse has moved out of state, you may be concerned that this will cause a major delay in your case. Take heart—your spouse can't prevent you from getting divorced by moving or actively trying to dodge a divorce complaint. You can take advantage of ex parte divorce procedures if your spouse isn't cooperating or is especially hard to find.

What are the Residency Requirements for an Ex Parte Divorce?

The spouse that files for an ex parte divorce must first meet certain residency requirements. The rules governing divorce vary a bit between states, but generally, you must live in the state or county where you plan to file for a minimum period of time. These “residency requirements” typically range from six weeks to a year in some places. Be sure to verify your state and county’s requirements with a local family law attorney before filing for divorce.

An ex parte divorce allows for an exception to normal jurisdictional rules. Typically, a state court can only decide a person’s legal rights if that person has some contact with the state through a residence or a job there. However, an ex parte divorce requires only one spouse to live in the state for a court to have jurisdiction over both spouses in the case.

What Kind of Notice Do I Have to Provide to My Spouse?

Notice is especially important in an ex parte case because a court has to ensure that each spouse is aware of the impending divorce. Typically, you can satisfy notice requirements by hiring a sheriff or appropriate third party to personally serve the divorce complaint on your spouse. If personal service is impossible, a court may allow a spouse to use other methods of giving notice, like sending a copy of the divorce petition through certified mail or even by publishing a notice of the divorce in the local newspaper. A court has to pre-approve alternative service methods.

If you have questions about proper service, talk to an attorney, because if it’s done incorrectly, a judge may reject your case, or your spouse could later ask a court to set aside or invalidate your divorce judgment.

Are Ex Parte Divorces Valid in Other States?

An ex parte divorce is entitled to the same legal recognitions and protections of any other divorce case. Courts are required by the U.S. Constitution to give full faith and credit to divorces obtained in another state. The only exceptions to this rule come into play if the divorce wasn’t properly obtained.

Specifically, if a court lacked "jurisdiction" (authority to make decisions) over a couple, but granted them a divorce anyway, another state may reject the divorce decree as invalid. For example, if one spouse recently moved to Ohio, but didn't live there long enough to meet the residency requirements before filing, any divorce obtained by the Ohio court will be invalid.

A divorce can also be set aside based on fraud or collusion. If one spouse obtained an ex parte divorce without giving the other spouse proper notice or by misrepresenting material facts (such as asset and debt information), a court can overturn the divorce judgment.

An experienced family law attorney can help relieve some of the stress of divorce and make sure your divorce is done right the first time.

Questions for Your Attorney

  • If I have child custody and property issues that need to be decided, can I still get an ex parte divorce?
  • How do I make sure that my spouse gets proper notice of my divorce action?
  • My spouse and I live in separate states. If my spouse files for divorce in one state, can I file for divorce in my own state?
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