Written By: Lenorae C. Atter, Attorney at Law
As a Jacksonville, Florida divorce lawyer, often I am asked how someone can divorced if they do not know where the other spouse is living. Florida does have a residency requirement that at least one party has to reside in Florida for at least six (6) months prior to filing for divorce, but what about the other spouse?
If one spouse lives in Florida and the other’s whereabouts are unknown, does that mean that the parties cannot get a divorce? No. For example, Will and Diane were married and living in Florida before they separated. Once they separated Diane stayed in Jacksonville, Florida and Will moved without telling Diane where he was going. They have not communicated since their separation and now Diane wants to get a divorce. If Diane lived in the State of Florida for at least six (6) months prior to filing for divorce, then she can file in a Florida court. However, since she does not know where to have Will served, Diane will have to file an affidavit with the court and swear to the court that she has done a diligent search and cannot locate her husband, Will.
So, once the affidavit is filed does Diane just simply get the divorce completed? No. Once Diane swears that she cannot locate Will, she must actually publish in a local paper where Will last lived that she has filed for divorce and that he has to respond to the publication within a certain period of time. Once she files the publication, it has to run in the paper for a set period of time before Will can be deemed not to have responded.
Does Diane’s divorce become final once the publication runs and Will does not respond? No. Diane has to actually file with the court a Motion for Clerk’s Default. The clerk of court actually has to review the file and the deadline for Will to respond and verity that Will did not respond to the publication with any documentation. If Will did not actually file any documents with the court, then the clerk may enter a default to show the court that Will is definitely in default of the petition for divorce.
Once the clerk’s default is entered is Diane then divorced? No. Diane still has to have a full hearing in front of a judge to explain to the judge that her marriage to Will is irretrievably broken and to tell the judge what she would like as a result of the divorce. In this case, Diane may tell the judge that she and Will previously divided their debts, but that they still have a joint checking account with money in it and she would like all of the money from the account. Since Will is not at the hearing there is no one there to disagree with Diane’s request, so the judge may award Diane any of the money in the account. The same goes for joint property as well.
Once the final hearing is held in front of the judge, the judge will enter an order based on the evidence and testimony presented by Diane and makes a ruling about the divorce. If the court believes that the marriage is irretrievably broken, then judge may award Diane her divorce.
If you are going through a divorce and do not where your spouse is located, then it is important to follow all of the necessary steps to actually finalize your divorce. To better understand your rights and options you should speak to a divorce lawyer/family law attorney.