A divorce from a missing spouse refers to getting a divorce from a spouse that you’ve lost touch with. We divorce attorneys call it a divorce by publication.
When to Get a Divorce by Publication
When you and your spouse have separated without getting a divorce, you may end up losing track of each other. You each have gone on about your own lives after the separation. It’s not so much that they are missing, it’s just that you don’t know their whereabouts, and may not know anything about their relatives so that you can find your spouse through them.
To be able to get a divorce, you must be able to serve them with the divorce documents. Of course, since you can’t find them, you will not be able to serve them. This is where the process of a divorce by publication comes in.
A Divorce by Publication has Specific Requirements
A divorced by publication is a particular process to do the divorce and not a type of divorce.
The process of doing your divorce by publication has specific requirements. It is not just a matter of saying, “I don’t know where they are.”
The process also has specific timelines that must be complied with. Otherwise, you run the risk of not having a valid divorce.
Because a divorce by publication has specific requirements and deadlines, it is not a quick divorce. It can take 2 to 3 months to complete. Sometime people lose track of their spouse, meet someone else and are ready to re-marry. In this case, you need to divorce first and then remarry; otherwise this become bigamy.
See below for other reasons why you may not want to postpone a divorce after a separation, and then have to resort to a divorce by publication.
The time frame for a divorce by publication cannot be shortened because the requirements are set by statute.
A divorce by publication requires a search for your spouse. If your spouse is found, then they are served with the divorce papers. If your spouse is not found, the divorce is proceeds as an uncontested divorce.
Pitfalls of Separating from Your Spouse and Not Getting a Divorce
When you separate and do not divorce, you may find yourself facing one or more of these five situations:
- Buying a Home: In Florida, if you want to buy a home and are married, your spouse will have to sign the mortgage. This isn’t a problem if you are paying cash for the home. But if you have to finance your home, your closing may be delayed since you have to either find your spouse or get the divorce done.
- Getting Remarried: Remarrying while still being married to someone else is called bigamy, which is a crime; and your new marriage is void from the beginning. Beyond the fact that it is a crime, do you really want to start your new marriage while still married to someone else? New spouses are rarely understanding of this fact.
- Setting a Wedding Date: Related to the second point, above, is setting a marriage date for your new marriage while still being married to someone you can’t find. There is no way to shorten the time required to do a search to find your spouse, or the time set by the Court for your spouse to answer when the divorce is done by publication.
- Inheriting Your Estate: People who are married have a right in the estate of a spouse who passes away, regardless of whether they are still living together. At a minimum, your heirs will have to fight your spouse. In the worst case scenario, your spouse may walk away with property you accumulated between the date of separation and the date you passed away.
- Having Your Spouse Claim Property: In many instances, your spouse can claim a share in property you have accumulated since the separation. In Florida, there is no legal separation that automatically happens simply because you and your spouse have decided to separate. There is either marriage with a pre-nuptial or post-nuptial agreement, or a dissolution (a divorce). But it is a myth to think that just because you are no longer living as spouses, that you are “legally” separated. Without a pre-nuptial or a post-nuptial agreement, all property you accumulate–think retirement plans, investments, small business, savings account, etc.– after you separated, but before a divorce, is property that is subject to being divided by the Court.
Don’t put off your divorce any longer simply because you think it will be a hassle to get it done. As a divorce attorney, these and more complicated divorces are all I do.
Most of these divorces end up being uncontested. This is actually wonderful since now uncontested divorces now required no court appearance.
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