Missing Spouses and Divorce

 

By David Roberts | Divorce Attorney
Posted on July 15, 2016

From time to time we are approached by clients who wish to file for divorce but do not know how to reach their spouse in order to serve divorce papers. This can be problematic where parties own property or have children together. Should you find yourself in this position, it is imperative that you seek legal advice from an experienced family law attorney who is familiar with the law surrounding this issue.

Constructive Notice

Although a party being sued has a constitutional right to receive notice of the suit and an opportunity to be heard, Florida permits parties to file for divorce even if they have no address at which to serve divorce papers on their spouse. In such cases, parties may serve the missing spouse by publication. Service by publication, also called “constructive notice,” requires you to publish notice of your divorce case in a local newspaper once a week for four consecutive weeks using a newspaper approved by the Clerk of Court (often this will require publication in a newspaper which publishes in the county in which you resided during your marriage). It will furthermore be necessary for you to prove that you conducted a diligent search for your spouse before you will be permitted by the Court to use constructive notice. To prove diligent search, you will be required to file an Affidavit of Diligent Search with your Petition for Dissolution of Marriage which reflects the methods you used to locate your spouse (for example, contacting the Department of Motor Vehicles for a last known address, contacting relatives and employers, and checking with the post office for a current address). It would also be wise to check for a death certificate as part of your diligent search.

Default Judgment

If the Court permits you to go forward with your divorce petition on the basis of constructive notice, and your spouse does not come forward, you may be granted a Default Judgment of Dissolution of Marriage. Such a judgment dissolves your marriage; however, you may be left with many loose ends. In the absence of personal service (where your spouse was actually served with divorce papers), the Court has no jurisdiction to rule on issues of equitable distribution, property rights and obligations, alimony or attorney’s fees, although the Court should reserve jurisdiction to hear these matters at a later date.

What if I received a Divorce by Default and my Spouse Reappears?

If you have obtained a divorce by default and your spouse suddenly resurfaces, you may wish to go back to court regarding any outstanding issues remaining in your case such as alimony, attorney’s fees or equitable distribution. In Florida, prior caselaw has allowed parties to reopen their dissolution of marriage cases in order to have these issues heard and to permit both parties to participate in financial discovery and mediation. If you find yourself in this situation, it is important that you seek experienced legal advice before attempting to reopen your case. We at The Roberts Family Law Firm, P.A. can help. Because our practice is limited to family law, we have many years of extensive experience in all manner of family law issues. Call us today for a consultation to discuss your best strategies for dealing with a missing or newly located spouse in family court.

David Roberts
Family Law Attorney