Divorce is usually precipitated by an uncomfortable conversation during which at least one spouse must work up the nerve to say he/she wants out of the marriage. If given the choice, it is likely many would skip this step if at all possible, but they do have the comfort of knowing where their spouse is so the divorce process can begin. However, what does a spouse do when he/she cannot locate the other person to initiate a divorce? One of the basic requirements of a divorce case is the need to serve the other spouse with a copy of the divorce petition so he/she has notice and an opportunity to reply. However, what does one do if a spouse suddenly walks out one day, without a word, and never returns? Likely, the person left behind will at some point contemplate divorce, but how does one proceed when a central party is absent? A discussion of how one can obtain a divorce when one spouse is missing, and limitations of the legal process in this situation, will follow below.
Constructive Notice/Service by Publication
As noted above, all parties to a legal proceeding have the right to notice of the suit and an opportunity to respond. However, the law does not want to keep individuals in marriages solely because one spouse cannot be located. As a result, one party can petition for divorce and satisfy the notice requirement by providing constructive notice, or service by publication. Service by publication can be accomplished by publishing a notice of the divorce case in a newspaper approved by the Clerk of Court for four consecutive weeks. Further, the party seeking divorce must make a diligent search for the other spouse, which is something beyond stating he/she cannot be located. Specifically, a party will be expected to show some form of the following actions:
- contacting the last known employer;
- questioning family and friends about the spouse’s current or past whereabouts;
- searching online;
- checking social media; and
- monitoring bank and credit account activity.
An affidavit of the party’s failed efforts to locate the missing spouse must be filed in conjunction with the petition for divorce before a court will proceed on the case.
Default Judgment and Limitations of the Court
If a party fails to respond to a pending legal action, the court will issue what is called a default judgment. This essentially grants all the demands of the petitioner, which may sound great for the spouse seeking divorce, but due to the personal nature of divorce proceedings, there are some caveats. While a court in a constructive notice case can dissolve the marriage, it does not have authority to do the following:
- divide property;
- award child support or alimony; or
- create a parenting plan, though the practical implication of one spouse’s absence is that the party present receives sole custody.
Obviously, these issues lay at the heart of most divorce cases, which is why courts are willing to reopen divorce cases if the missing spouse later reappears to settle these outstanding matters. Because divorce cases under these circumstances leave a lot of issues unresolved, it is important to do whatever is necessary to find the other spouse, including hiring a private investigator if financial resources allow.
Get Legal Advice
Divorce is never easy, and unforeseen complications frequently come up in the most straightforward divorce cases. Having an experienced divorce attorney by your side greatly reduces the likelihood of surprises, and provides the security of knowing someone has a vested interest in protecting your rights. The Tampa Bay firm All Family Law Group, P.A. takes time to get to know their clients so they can best serve their needs and obtain the best possible outcome.
Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.
by Lynette Silon-Laguna Google+