When a married person wishes to file for divorce but their spouse has moved to another state, the spouse filing for divorce may be able to file in the state where the spouses last lived together—if there hasn’t been too much time elapse since the spouses lived together in that state. This limitation on the time in which the spouse must file for divorce is generally due to the requirement that the court have personal jurisdiction (authority) over a missing spouse to be able to enter court orders that impose personal obligations on the missing spouse—such as paying child support or marital debts—and the former spouse must be a resident or a recent-enough resident of the state for the court to exercise such jurisdiction.

If the spouses have children and if the children are living in another state (with the other spouse or with other persons), the spouse seeking to file for divorce may be required to file in the state and county where the children reside if the children have lived in the other state for some prescribed period of time (6 months, for example).

When a married person wants to file for divorce but is unable to locate their spouse to serve them with the petition or complaint (lawsuit) for divorce, the spouse filing for divorce may be able to provide the required legal notice of the divorce filing by publishing a notice at the courthouse or in a local newspaper. This is a special type of service of process known as service by publication, and to use it, the spouse filing for divorce usually must file an affidavit (sworn statement under oath) detailing the diligent efforts made to locate the missing spouse, stating that the missing spouse is not on active military duty, and identifying the missing spouse’s last known mailing address.

Laws regarding a divorce court’s jurisdiction over a spouse living in another state (personal jurisdiction) and jurisdiction over child custody matters (subject matter jurisdiction) vary from state to state. These laws are usually located in the state’s statutes—often in the family code or domestic relations code. For these reasons a spouse whose estranged spouse is living in another state or whose whereabouts are unknown should generally talk to a family law attorney sooner than later.

In Delaware, when a married person wishes to file for divorce but their spouse resides in another state, the filing spouse may still be able to file for divorce in Delaware if they lived together in the state before the spouse moved away. However, the court must have personal jurisdiction over the non-filing spouse, which typically requires that the spouse was a resident or had sufficient connections to Delaware recently enough for the court to exercise jurisdiction. This includes the authority to impose personal obligations such as child support or marital debts. If the couple has children who have been living in another state for a period of time (usually at least 6 months), the divorce may need to be filed in the state and county where the children reside. For spouses unable to locate their partner to serve divorce papers, Delaware allows for service by publication, which involves publishing a notice in a local newspaper after filing an affidavit demonstrating diligent search efforts and confirming the missing spouse is not on active military duty. The specific time limits and requirements for jurisdiction and service by publication can vary, so it is advisable for an individual in this situation to consult with a family law attorney in Delaware to understand the applicable laws and ensure proper procedures are followed.