If you cannot find your spouse, you can still get divorced in Montana. Rule 4(o) of the Montana Rules of Civil Procedure allows the summons to be served by publishing it in a newspaper when the action is "for dissolution, legal separation or a declaration of invalidity of a marriage of a Montana resident" and the other spouse has not been served any other way. The tradeoff is that a decree entered after publication is limited in what it can decide. This page is part of the filing section of our Montana Divorce Guide.
Start With the Ordinary Methods
Publication is not a shortcut. The rule makes it available only for a party "who has not been served under the foregoing sections of Rule 4," and it requires a returned summons showing the failure to find that person (M. R. Civ. P. 4(o)(1), (3)(A)(ii)). So the first step is a genuine attempt at regular service, described on our page about serving divorce papers.
Keep in mind that a spouse who lives in another state is not a missing spouse. If you know where your spouse is, Rule 4(n) lets you have them served personally outside Montana, and that service "dispenses with" the publication and mailing steps. Personal service is the better route whenever it is possible, because it avoids questions about notice later.
The Steps for Service by Publication
| Step | What the rule requires | M. R. Civ. P. |
|---|---|---|
| 1. File the petition | A pleading stating a claim in one of the situations where publication is allowed, here a dissolution of a Montana resident's marriage. | Rule 4(o)(1)(C), (3)(A)(i) |
| 2. Attempt service | The summons comes back showing the failure to find your spouse. | Rule 4(o)(3)(A)(ii) |
| 3. File an affidavit | A sworn statement that your spouse resides out of Montana, has left Montana, cannot after due diligence be found here, or is concealing themselves to avoid service. | Rule 4(o)(3)(A)(ii) |
| 4. Get an order | An order for service by publication, issued by the judge or the clerk of court. | Rule 4(o)(3)(B) |
| 5. Publish | The summons runs once a week for three successive weeks in a newspaper published in the county where the case is pending. The first publication must be within 60 days after the affidavit is filed. | Rule 4(o)(4), (6) |
| 6. Mail | A copy of the summons and petition is mailed to your spouse's residence no later than 14 days after the first publication, unless the affidavit states the residence is unknown. | Rule 4(o)(5) |
| 7. Prove it | The publisher's affidavit, and an affidavit of mailing if papers were mailed, are filed with the court. | Rule 4(r)(1)(C) |
The published summons must include a statement in general terms of the nature of the action (M. R. Civ. P. 4(c)(2)(D)). If the first publication is not made within 60 days after the affidavit is filed, the rule says the action must be dismissed as to the party who was to be served that way (M. R. Civ. P. 4(o)(6)). Service is complete on the date of the last publication (M. R. Civ. P. 4(o)(7)).
The Affidavit and the Diligent Search
The affidavit is the heart of the process. In a dissolution it states one of four things about your spouse: that they reside out of Montana, have departed from Montana, cannot after due diligence be found within Montana, or are concealing themselves to avoid service (M. R. Civ. P. 4(o)(3)(A)(ii)).
The rule says the affidavit is sufficient evidence of diligence if it recites that diligent inquiry was made, and that the facts of the inquiry need not be detailed. Do the search anyway, and keep a record of it. You are swearing to it, and a decree that rests on a search nobody made is open to challenge. The rule does not prescribe a checklist. Reasonable places to look include the last known address and phone number, email, relatives and friends, the last known employer, and public records.
If you do know a residence address, a copy of the summons and petition must also be mailed there, postage prepaid, no later than 14 days after the first publication (M. R. Civ. P. 4(o)(5)).
What the Court Can Decide Without Your Spouse
This is the part people overlook. The rule states the effect of publication directly: the court "may render a decree adjudicating any interest of such defendant in the status, property, or thing acted upon," but the decree "does not bind the defendant personally to the personal jurisdiction of the court unless some ground for the exercise of personal jurisdiction exists" (M. R. Civ. P. 4(o)(2)).
In a divorce, the "status" is the marriage. A Montana court that has jurisdiction over the marriage of a Montana resident can end it. Orders that depend on power over the absent spouse personally are a different matter. Montana's dissolution statute is written with that in mind: the court must address parenting, child support, maintenance, and property only "to the extent it has jurisdiction to do so" (MCA § 40-4-104(1)(c)).
Parenting has its own jurisdiction rules. Under MCA § 40-7-201, a Montana court's power to make an initial parenting determination generally turns on whether Montana is the child's home state, and subsection (3) says personal jurisdiction over a party is neither necessary nor sufficient. See which state decides custody.
Issues Left Open Can Be Decided Later
A decree that dissolves the marriage but leaves money issues undecided is not the end of those issues. Montana's property statute applies to a "division of property following a decree of dissolution of marriage or legal separation by a court that lacked personal jurisdiction over the absent spouse or lacked jurisdiction to divide the property" (MCA § 40-4-202(1)). The temporary orders statute likewise refers to a later proceeding for property, maintenance, or support after such a dissolution (MCA § 40-4-121(1)).
If the absent spouse holds retirement accounts, real estate in another state, or owes support, talk with a lawyer about what the first decree should say and what will need a second step.
After Publication: Default and the Decree
A spouse served by publication has the same opportunity to respond as any other. If no response is filed, the case proceeds as a default divorce. The court still has to make the findings the statute requires, and federal law requires an affidavit about whether the absent spouse is in military service before a default judgment is entered (50 U.S.C. § 3931(b)(1)).
Publication costs money, since newspapers charge for legal notices, and that cost is separate from the court's filing fees.
One caution. Publication is for a spouse who truly cannot be found. If you are avoiding contact because of abuse, there are safer ways to proceed than pretending not to know an address. Call 911 if you are in danger. The National Domestic Violence Hotline is 1-800-799-7233, and our page on divorce and domestic violence explains the options.
This page explains Montana law in general as of the 2025 Montana Code Annotated and the Montana Rules of Civil Procedure. It is not legal advice about your specific case.