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Divorcing a Missing Spouse – A Common Question
Take a deep breath: Divorcing a missing spouse can be done. I often get asked if is is possible to get a divorce when you don’t know where your husband or wife is located. Sometimes the person has been missing for a handful of years, and sometimes the husband or wife has been missing for more than 20.
The short answer is that you can get a divorce even if you can’t find your husband or wife. It is, unfortunately, a bit more complicated than an uncontested divorce.
Understanding Divorce Laws in New York
Let’s start with the basics. If you were married you need to have a court dissolve the marriage. I know this seems basic, but I have literally run into people who think that they can end the marriage by either tearing up the marriage license or just walking away from the marriage. No, that doesn’t end the marriage.
Not getting a divorce has severe property and support implications which I will address at length below. This is why it is oftentimes very important to get to considering divorcing your missing spouse, whether husband or wife.
Divorcing a Missing Spouse- The “No Fault” Divorce
New York’s adoption of “no-fault” divorces allows the dissolution of marriage without assigning blame. An irretrievable breakdown of the marriage for at least six months is a common ground for such divorces. All you need to do is swear that the marital relations have broken down for six months or more.
There is nothing to prove. It is just a flat statement.
On the other hand, a fault-based divorce requires proving that one’s spouse committed an act that legally justifies the divorce. This could include cruel treatment, abandonment, imprisonment, or adultery.
Before 2010, when divorcing a missing spouse we actually had to prove at a trial or hearing that the husband or wife was in fact missing, and had abandoned the marriage.
Again, under the 2010 law, when divorcing a missing spouse, we no longer have to prove anything. Merely desiring a divorce is enough for the court.
Serving the Divorce Papers
Whether divorcing a missing spouse, or someone who is not missing, the first step is serving them with the Summons and Complaint (“the divorce papers”).
When we know where the find the husband or wife, we use a process server. Sometimes the husband or wife, or even their lawyer, will accept service. This saves the cost of a process server.
Serving Papers on a Missing Husband or Wife
Divorcing a missing spouse complicates the process. If your husband or wife can’t be found, the law gives us several tools to solve the problem.
Procedure for Divorces Involving a Missing Spouse
In cases where the spouse’s whereabouts are unknown, one can request the court’s permission to serve them in other ways, that are going to reasonably give them notice.
Before being able to serve a missing spouse you have to ask permission from the Judge for “alternate service.” Under New York divorce law, only in-person service is allowed without a court order for some other form of service.
Efforts to Locate a Missing Spouse
Before the court allows any form of alternate service, you must prove that you exhaust all reasonable avenues, including contacting the spouse’s last known employer, relatives, local hospitals, shelters, and utilizing the internet. I will sometimes advise the client to hire a private investigator.
I have been successful in finding brothers, sisters, mothers, and fathers. In these cases, the courts have allowed me to serve these relatives when we can’t find the spouse.
If your spouse is active on Facebook or other social media, the courts have allowed service on those platforms. Courts have even allowed service by text message or email.
Next Steps After Searching
This is where the process of divorcing a missing spouse can get a bit more complicated. Once we have made our “diligent” service you have to make a special motion to the court seeking alternate service. As discussed above, that can be served on a relative, by social media, email, or by publication in a local newspaper.
The courts are very careful about alternate services and many times will reject the papers on the first submission, and require that you do more searching. Many times additional searches will turn up nothing. Recently, however, a further, deeper, and a bit more expensive search did locate the wife.
Service by Publication
The most common method of serving a missing spouse is by publication in a local paper. You ask permission from the court to allow you to publish the divorce papers in a local newspaper. The cost for this is generally between $1,000 to $2,000. Now, I’m not talking about the Daily News, the Post or Newsday.No, I’m talking more about the Long Island Herald.
The paper will publish the notice 3 times and then provide an affidavit of publication. With the affidavit in hand, you can now go back to the judge and seek a divorce on default.
Handling Spouses Evading Service
What if your spouse is not missing but is intentionally avoiding service? I think too many people believe the nonsense they see on TV and movies about service of papers. Realistically, there is no way to avoid service.
If your husband or wife is avoiding service, we can get an order from the court to nail the papers to their door. It is literally called “nail and mail” service. And yes, I have gotten judges to order that.
Some people are even foolish enough to believe that if they refuse to take the papers that they can avoid service. Not true. If the process server comes up and says “I have papers for you” and drops them at your feet, then you have been served.
Remember, one way or another service will happen.
The Default Judgment
Once the court is satisfied that service has been done, and the missing spouse has not appeared, it will order a default judgment.
If there are no children, or there is no marital property (see this article for an explanation of marital property), the court will probably grant the divorce on the papers.
However, if there are children involved or marital property, like a house or retirement assets, then the court may order an inquest. This is an in-person hearing before the court. It looks like a trial, except that the other side is not there.
Why Get a Divorce from a Missing Spouse?
Why should get a divorce from a missing spouse? Out of sight, out of mind, right? Well, there are several good reasons.
- You want to get remarried. You can’t remarry if you are still married.
- You are still legally tied to someone who has abandoned you.
- Your missing spouse is on the deed to the house. This is a big one. I’ve had clients who bought the house 20 or 30 years ago, and the spouse has been missing that long. They can’t do anything with the house because the missing spouse is still on the deed.
- Inheritance rights. You can’t disinherit a spouse. A missing spouse can walk in after your death and try to get the assets you left the truly important people in your life.
Final Thoughts
While getting a divorce in New York when your spouse is missing is challenging, it is achievable with persistence and the right legal guidance. As an experienced attorney in this field, I recommend seeking professional assistance to navigate this process.
Remember, each case is unique. This guide provides a general overview, and I urge you to consult with a knowledgeable attorney for advice tailored to your specific situation.
Give us a call at (516) 352-2999 for a free 15 minute consultation.
