Can You Divorce Your Spouse if You Cannot Find Him?

closeup of a divorce decree document with penDivorce can be a stressful time in a person’s life. Not only are there a lot of considerations that follow the divorce such as financial divisions and social stresses, but there are a slew of concerns that occur before the divorce has even been finalized. One such example is that of notifying the other spouse that you are filing a divorce petition in court. It can be even rougher if you cannot find your spouse. While some individuals might be relieved if they are unable to locate their significant other, the spouse’s presence in a divorce case is necessary in order to provide the court with a clear picture of the situation and to provide each spouse with a chance to present his or her case before the court. Sometimes, however, a spouse may not wish to be found or may wish to avoid proceedings all together. Fortunately, there are some things that can be done in order to obtain a divorce if you cannot find your spouse.

Divorce by Publication

While there are a number of factors that are considered when a person engages in a divorce, finding a spouse is rarely one of these considerations. In some situations, however, spouses may not have the luxury of waiting for their spouse to appear before filing for divorce. In these situations, a spouse may take action that could lead to divorce by filing for divorce by publication. In order to do this, however, a spouse must do three things:

  • A spouse must attempt to locate the missing spouse.
  • A spouse must fill out an affidavit or sworn statement verifying that the spouse attempted to locate the missing spouse.
  • A spouse must publish a notice of the divorce.

Attempt to Locate

Because the divorce process generally requires the input and participation of both parties, and because divorce naturally affects both parties in a marriage, courts will require that a spouse filing for divorce provide the other spouse with proper notice, usually through a process server. If a spouse is unable to locate the other spouse, however, the question arises of how to proceed with the divorce. In order to prevent people from making knee-jerk reactions in favor of divorce by publication, courts will generally require the spouse to make some attempt to locate the missing spouse. While there is no set list of actions a person must take, there are actions that are recognized to be evidence of making an attempt to locate the other spouse. Such actions include, but are not limited to:

  • Searching phone directories of any cities and towns the other spouse may live in;
  • Searching records of the Department of Highway Safety and Motor Vehicles;
  • Contacting the last known employer of the missing spouse;
  • Talking to friends or family of the missing spouse;
  • Asking whether the missing spouse may have passed away, and if so, ask for the date and location of death;
  • Contacting hospitals in or around the missing spouse’s last known address;
  • Hiring a private investigator or make use of “skip tracing” services; or
  • Writing letters to the U.S. Armed Forces to see if they have any information about the missing spouse.

It is not necessary for an individual to do every single thing on this list when attempting to locate the other spouse. They must, however, make at least a diligent effort to locate the missing spouse. While searching for the spouse, it is important to also keep track of the methods used, and what the result was, even if the result provided only a possible lead.

Sworn Statement

While most people may feel that their word will be good enough, the court will still require a signed affidavit of their attempt to contact the missing spouse. Not only does this provide the court with a record that the event actually happened, but it also provides the petitioner with proof further down the line should the missing spouse turn up and contest the divorce by publication. In an Affidavit of Diligent Search, which can be located on the Florida Court website, a petitioner must state what actions he or she has taken when searching for the missing spouse. While there is no requirement to provide the date the specific acts were taken, keeping your own personal record of what you did and when you did it can provide the court with a clearer picture of the extent of your actions. Additional information to be added to the affidavit includes the age of the missing spouse, the last known address of the missing spouse, and an assertion as to whether the spouse is still living within the state.

Publish Notice

Once the Affidavit of Diligent Search has been filed, a party may then prepare a Notice of Action for Dissolution of Marriage, which is a type of summons. Once the court approves the Affidavit, the Notice for Dissolution of Marriage can be published in a newspaper that specializes in publishing classified legal advertisements. In order for court to act upon the published notice, the notice must be published once a week for at least four weeks.

Disadvantages to Divorce by Publication

While a divorce by publication can help spouses who are having trouble locating a missing spouse, there are several drawbacks to making such a divorce. First, not only would the court be unable to divide marital assets and debts, but also, a court would be unable to award alimony or child support payments. In addition, the court would be unable to make a judgment regarding a time-sharing plan. That being said, if the spouse cannot be found, then the remaining spouse will retain sole custody of the minor child. These issues can only be decided once the missing spouse returns. As such, the search for a missing spouse should not end once the divorce has been finalized.