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How do You Get Divorced When Your Spouse Disappears?

The procedure of divorce involves multiple steps, one of the first being serving the other spouse with divorce papers once the case is initiated. In fact, most spouses know divorce is coming, and anticipate the delivery of the official paperwork. Then, there are situations that are more complicated, and one that can cause particular problems is when a spouse can not be located. Divorce is a process, like all litigation, that expects the participation of both parties, and the absence of one does alter how the case is handled both procedurally and substantively. This does not mean divorce in case of a missing spouse is wholly unavailable, but extra effort will be required to ensure the absent spouse’s rights are reasonably protected.

One Jamaican man is facing this situation as he seeks to divorce a woman he married in 2007, but has not seen or contacted since she left without a word two weeks after the wedding. Divorcing a spouse when his or her whereabouts are unknown does present some challenges, and a divorce attorney is needed to ensure the additional requirements are met. An overview of how the law deals with divorcing a spouse who can not be located, and thus, does not participate in the case, will follow below.

Service by Publication

As noted, all lawsuits generally require all named parties to be served with a copy of the complaint or petition filed with the court. This mandate is to give the party notice about his or her involvement in a legal case, and the opportunity to respond. The full and active participation of all parties to a lawsuit is a tenet of the American legal system and exists to help keep the process fair. Not knowing the whereabouts of a spouse obviously complicates meeting this requirement, but the law does offer a mechanism to proceed with a case in spite of not knowing where a spouse is located. Notice by publication is the option available when the location of a spouse is unknown, but courts will not immediately authorize this process. Rather, the spouse seeking divorce must make a diligent effort to locate the missing the spouse, usually starting with the last known location, speaking to friends and relatives, and perhaps hiring a private investigator to seek him or her out. Evidence of this effort will need to be presented to the court, along with documentation that notices were published in newspapers circulated in the area the spouse was last known to reside. This notice must be published three times, with additional time given after the final notice for the missing spouse to respond. An affidavit attesting to the publication of the notices will also need to be provided, and the case can proceed if one these requirements are met.

Effect on the Divorce Case

Typically, each spouse in a divorce will make demands for the settlement he or she wants, and then, through negotiation, mediation, or judge’s decision, the issues of the divorce are resolved. When one spouse does not participate, though, the dynamics change, and the court must instead issue a default judgment. A default judgment comes into play when the other party in a case fails or refuses to participate, leaving the court to solely base the judgment on the demands of the spouse seeking divorce. In other words, in a default judgment, the spouse seeking divorce will get everything he or she demands, including property and child custody. Note that spousal maintenance would likely be unavailable, since the court does not have enough information about the other spouse’s financial resources to make a decision, and collecting child support would prove difficult.

Get Legal Advice

Divorce is not an easy process, and complications like a missing spouse only add to the stress. Working with an experienced divorce attorney can reduce the likelihood of delays or missed legal issues that can impact the outcome. Christopher L. Arrington, P.C. has years of experienced helping clients through divorce, and knows how to navigate the technical complexities of the law to your benefit. Contact the Danville office to schedule an appointment.

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