Divorcing in Asheville is often straightforward when both spouses are cooperative. But what happens when one spouse is missing or unreachable? Can you still file for divorce in North Carolina—and can it be uncontested?
The answer is yes, but the process involves several more steps than a typical uncontested divorce. North Carolina law recognizes that spouses may be absent, unresponsive, or impossible to locate. In those cases, the law allows for service by publication and permits a default divorce under specific conditions.
This blog will walk through everything you need to know about how to get an uncontested divorce in Asheville when your spouse is missing, including when to consider service by publication, what constitutes “due diligence” in locating your spouse, how default judgments work, and why working with an experienced Asheville divorce lawyer can help you avoid procedural pitfalls.
What Qualifies as an Uncontested Divorce in North Carolina?
Before exploring missing spouse scenarios, it’s important to understand what an uncontested divorce means in North Carolina.
In simple terms, an uncontested divorce is one where:
- The spouses have lived separate and apart for at least 12 consecutive months
- At least one spouse has lived in North Carolina for at least six months prior to filing
- The defendant (non-filing spouse) does not contest the divorce or file any responsive pleadings
- The plaintiff (filing spouse) meets all legal requirements for service and notice
When a spouse is missing or unreachable, the court cannot rely on direct service. Instead, the law permits alternative methods—specifically, service by publication—if the plaintiff demonstrates that they have made a reasonable and documented effort to locate the defendant.
This process ultimately leads to a default divorce, which can still be considered uncontested if the defendant never responds.
How to Start a Divorce When Your Spouse Is Missing
Filing for divorce in Asheville when your spouse is missing involves the same foundational steps as any divorce case, with added layers of complexity around service of process.
Step 1: Meet Residency and Separation Requirements
You must meet two basic legal prerequisites:
- You have lived in North Carolina for at least six months before filing
- You and your spouse have lived physically separate and apart for a continuous 12-month period with the intent for the separation to be permanent
These requirements apply regardless of whether your spouse can be located.
Step 2: File the Complaint for Absolute Divorce
The Complaint for Absolute Divorce is filed in the Buncombe County Clerk of Court’s office. It must include:
- A statement of the date of separation
- Affirmation of your North Carolina residency
- Basic facts about the marriage
- A request for divorce and, optionally, other relief such as name restoration
Once the complaint is filed, the Clerk will issue a Civil Summons, which starts the clock for serving the defendant.
The Problem of Service: What If the Spouse Can’t Be Found?
North Carolina law requires that the defendant be notified of the divorce action. This is called service of process, and it is a constitutional requirement designed to protect due process rights.
Ordinary service methods include:
- Certified Mail (Return Receipt Requested)
- Sheriff’s Service
- Private Process Server
- Voluntary Acceptance of Service
But if none of these methods are possible—because you don’t know where your spouse lives or they have disappeared—North Carolina allows service by publication, which is considered a method of last resort.
What Is Service by Publication?
Service by publication involves placing a legal notice of your divorce case in a local newspaper in the county where your spouse was last known to reside.
This is the least direct, but still legally valid, way to serve someone who cannot be found through diligent efforts. The notice must appear once a week for three consecutive weeks in a newspaper that circulates in the area of your spouse’s last known address.
After publication is complete, and if the defendant does not respond within 30 days, you may file for default judgment.
The Diligent Search Requirement
Before the court will allow service by publication, you must prove that you have made a diligent search to locate your spouse. This is not optional—it’s a legal requirement.
What does diligence look like? The court may expect you to have tried several or all of the following:
- Contacted friends and family members of your spouse
- Checked their last known address
- Attempted to reach them by email or phone
- Searched social media platforms
- Inquired with the Department of Motor Vehicles
- Searched public records and court dockets
- Checked with the post office for forwarding addresses
- Searched online directories and people-finding tools
You will need to file an Affidavit of Diligent Search describing these efforts in detail. If the court is satisfied, it will authorize you to proceed with service by publication.
How to Publish the Divorce Notice
Once authorized, the notice must be published for three consecutive weeks in a newspaper that is qualified to run legal notices in the appropriate jurisdiction.
Key requirements:
- The notice must identify both parties
- It must state that a complaint for absolute divorce has been filed
- It must provide the date by which the defendant must respond (typically 40 days from the first publication date)
- It must indicate that a default may be entered if no response is filed
After the final publication, the newspaper will provide an Affidavit of Publication to confirm that the notice ran according to schedule. This affidavit must be filed with the Clerk of Court.
What Happens Next: Moving for Default
If your spouse does not respond within 30 days after the final publication date, you may move forward with a Motion for Entry of Default and a Motion for Summary Judgment.
Documents Needed:
- Motion for Entry of Default
- Affidavit of Service by Publication
- Affidavit of Diligent Search
- Affidavit of Plaintiff regarding separation and residency
- Military Affidavit (confirming the defendant is not on active duty)
- Motion for Summary Judgment or request for a hearing
- Proposed Judgment of Absolute Divorce
Once these are filed, a judge will review the case. If satisfied that all requirements have been met, the court may grant the divorce either by signing the summary judgment or after a short hearing.
Does This Count as an Uncontested Divorce?
Yes. A divorce where the defendant fails to respond—after being properly served by publication—is treated as uncontested by default.
You are not asking the court to resolve disputes over alimony, custody, or property. Instead, you are requesting only the dissolution of the marriage, and your spouse has not filed an answer or objection.
That makes it uncontested in the eyes of the court.
Can You Get Property Division, Alimony, or Custody in a Publication Divorce?
Usually, no.
Service by publication only gives the court in rem jurisdiction over the marriage itself. It does not establish personal jurisdiction over your spouse. That distinction is important.
Without personal jurisdiction, the court cannot rule on the following:
- Equitable Distribution (Property Division)
- Spousal Support (Alimony)
- Post-Separation Support
- Child Support (in most cases)
- Child Custody (unless the child lives in NC for at least six months and certain other criteria are met under the UCCJEA)
If you need rulings on these issues, you will need to locate your spouse and serve them using a more direct method that complies with personal jurisdiction requirements.
How an Asheville Divorce Lawyer Can Help
Navigating service by publication, default procedures, and uncontested divorce laws can be overwhelming without guidance. An experienced Asheville divorce lawyer can help by:
- Drafting the complaint and verifying legal compliance
- Conducting and documenting a diligent search
- Preparing affidavits and motion paperwork
- Coordinating publication with the proper legal newspaper
- Filing all necessary documents with the court
- Requesting a summary judgment or hearing
This ensures that your divorce proceeds efficiently and is not dismissed or delayed due to procedural missteps.
Timeframe for an Uncontested Divorce by Publication
The process typically takes longer than a standard uncontested divorce because of the publication period and court review time. Here’s a general timeline:
- Week 1–2: File complaint, attempt service, and begin diligent search
- Week 3–4: Petition the court for permission to serve by publication
- Week 5–7: Run publication notice for 3 consecutive weeks
- Week 8–9: Wait the 30-day response window post-publication
- Week 10–12: File motion for default and request judgment
- Week 13–14: Divorce judgment signed or hearing held
In total, expect the process to take about 3 to 4 months, assuming all documentation is accepted on the first try.
Avoiding Common Pitfalls
There are several procedural traps that can delay or derail an uncontested divorce by publication:
- Failing to conduct or document a thorough search for the spouse
- Using the wrong newspaper or failing to run the ad for three full weeks
- Misstating facts in the affidavits
- Forgetting to file the affidavit of publication
- Attempting to address issues that require personal jurisdiction
Working with a qualified Asheville divorce lawyer helps ensure your case avoids these common mistakes.
Can You Resume Your Maiden Name After a Default Divorce?
Yes. If you include a request in your complaint or summary judgment motion, the court may restore your prior surname even if your spouse is missing. This is often handled at the time the divorce decree is entered.
Final Divorce Decree and Its Limitations
The final decree will only dissolve the marriage. If your spouse was served by publication and never responded, the court will not resolve other legal matters unless you properly served them with jurisdiction.
If, down the road, you locate your spouse and need to address property, support, or parenting issues, you may do so in a new or supplemental legal action—assuming the statute of limitations has not expired.
FAQ
Can I get divorced in North Carolina if I don’t know where my spouse is?
Yes. You must conduct a diligent search and may use service by publication with court approval.
What is service by publication in Asheville?
It is a legal notice published in a local newspaper for three consecutive weeks when your spouse cannot be located through reasonable effort.
How long do I have to wait after publication before finalizing the divorce?
You must wait 30 days after the final publication date to allow time for a response.
Can I divide property or request alimony if I serve by publication?
Generally no. The court lacks personal jurisdiction to rule on financial or property issues unless your spouse is directly served.
Can I get custody of my children if my spouse is missing?
Sometimes. North Carolina must be the child’s home state, and jurisdictional rules under the UCCJEA must be met.
What documents do I need for a publication divorce?
You’ll need affidavits of diligent search, publication, military service status, and summary judgment documents.
Can my missing spouse come back and challenge the divorce?
Once a final decree is entered, it’s difficult to overturn—unless they can prove fraud, lack of jurisdiction, or procedural errors.
Is a publication divorce faster than a regular uncontested divorce?
No. It usually takes longer because of the publication period and added documentation.
Do I need an attorney to divorce a missing spouse?
While not required, an Asheville divorce lawyer can ensure the process is done properly and help avoid dismissal or delay.
Is my divorce valid if I use service by publication?
Yes, as long as you follow all court procedures and obtain a signed judgment from a North Carolina judge.
The McKinney Law Group: Uncontested Divorce in Asheville—Simple, Clear, and Efficient
When both parties agree, divorce doesn’t need to be a battle. At The McKinney Law Group, we help Asheville clients complete uncontested divorces with minimal disruption and maximum clarity.
Call 828-929-0642 or email [email protected] to schedule your consultation.