I Want a Divorce but Cannot Locate My Spouse

I Want a Divorce but Cannot Locate My Spouse

In a last-ditch effort to save their marriage, some couples opt for a trial separation. They may believe that time apart will help improve their marriage. Sometimes this works, but more often than not, it does not. In fact, 87% of separations lead to divorce.

When couples separate, they usually keep in touch with each other, but that is not always the case. Some spouses leave the marital home and are never heard from again. The other spouse may not be aware of the person’s whereabouts at all. A spouse may attempt to call, text, or email the missing spouse or contact him or her on social media, but to no avail. In some cases, even the person’s friends or family members may have no clue where the person is located. The missing spouse could be down the road in the same city, somewhere else in the state, or maybe even in a different state altogether.

If this is the case for you, what are your options if you want to file for divorce? Can you divorce an estranged spouse who cannot be located? Read on to learn about the process for divorce when you do not know where to find your husband or wife.

Divorce by Publication in Florida

When a couple divorces, one party typically serves the other with a petition. How can a spouse be served if he or she cannot be located? Florida and some other states offer an option called divorce by publication. This option is available only after a judge has been convinced that the other party has tried hard to find the spouse, but was unable to do so.

Florida law requires a good faith effort on behalf of the party seeking divorce. This means that the spouse must have performed a genuine search before seeking to divorce by publication. A judge may require that the party perform some or all of the following before granting a divorce:

  • Contacting friends and family members
  • Doing an internet search, such as checking known social media accounts
  • Contacting the spouse’s employer, if known
  • Sending certified mail to the spouse’s last-known address
  • Doing a search of phone directories of the cities where the spouse may be located
  • Asking for help from law enforcement to track down the spouse
  • Asking postmasters of various towns for the spouse’s forwarding address
  • Searching tax records, criminal records and other public records
  • Checking with local jails
  • Checking with agencies such as the Department of Motor Vehicles or Social Security Death Index website
  • Hiring a private investigator

Keep records of all attempts you make to contact your spouse. If you make phone calls or perform online searches, write down the dates. Keep copies of any emails or text messages you send. If you send or receive any documents, keep those handy.

If the party has performed these searches and still cannot locate the spouse, then he or she must file an affidavit. An affidavit is a sworn statement outlining the steps the person has taken to locate the missing spouse. The affidavit should also include the person’s full name and state that he or she is of legal age. It should also have a clause swearing that, under penalty of perjury, the information in the affidavit is true. The full list of requirements for this statement can be found in Florida Code 49.031-49.041. It is important that this step be done correctly, so if you need help, contact a divorce lawyer.

After filing the affidavit, you have 60 days to divorce by publication. This is done through a Notice of Action. The Notice of Action states that the divorce is pending and lists the court where you filed the petition. The notice needs to be published in the legal section of a local newspaper. You will have to pay for the fees associated with publication. The court will let you know where to publish the notice and for how long. Typically, the schedule is once a week for four weeks.

If the spouse still cannot be located, you can proceed with the divorce. You will need to file another affidavit showing proof that you published the notice. Attach a copy for the court to verify. If the court is satisfied with your efforts to locate your estranged spouse, the judge will proceed with granting your divorce by default.

If the motion is denied, it is likely because you did not do enough to locate your spouse. Ask the judge what specific things you should do and do them. Make sure you have proof of what you did so you can file the motion again and show the judge.

While divorcing by default does allow you to get divorced, there are some limitations involved. Since your spouse cannot be located, there cannot be any decisions made by the court regarding child custody, child support, alimony, or property division.

Seek Legal Help

It is easier to divorce when you already live with your spouse or at least know where to locate him or her. Some spouses are estranged, however, and are unsure of the other spouse’s whereabouts.

No matter your situation, divorce is still a possibility if you live in Florida. Seek help from Palm Beach divorce attorney Scott J. Stadler. He understands the process for locating and divorcing a spouse and can help you move on with your life. Call his office today at (954) 346-6464 to schedule a consultation.