What Happens When Your Spouse Disappears in the Middle of Your Divorce and Is Represented by Counsel?
By Beverly Bird
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It's possible for a spouse to disappear midway through divorce proceedings, especially if he doesn’t want the divorce. Many people believe that if they don’t participate, the divorce can’t go through. This has no basis in fact. The court will finalize the divorce without your spouse's participation. However, his disappearance will undoubtedly complicate the divorce for a while and slow its progress.
When your spouse’s attorney submits to the court a petition for divorce or a response to your divorce petition, this legally and ethically locks him into the case. His signature on the documents makes him your spouse’s attorney of record. The laws in every state obligate him to represent your spouse’s best interests. However, he can’t represent his interests if he can’t locate him and consult with him. He can’t agree to settlement terms without your spouse’s approval and he can’t advocate for him in court if he doesn’t know what your spouse wants. He cannot effectively do his job. Therefore, your spouse’s attorney will eventually file a motion with the court asking that he be relieved as counsel of record. He can’t simply take himself off the case without court approval. If your spouse has disappeared, the court would most likely grant the attorney’s request. However, court approval might take several months.
The fact that your spouse no longer has an attorney will not stop your divorce proceedings. After the court allows your spouse’s attorney to quit the case, the court will continue scheduling various proceedings to move your divorce forward. These proceedings might include case management conferences or mandatory mediation or settlement conferences. The court will begin sending notices for these events to your spouse’s last known address rather than his attorney. If he’s legitimately missing or even just ignoring the proceedings, he won’t show up for any of these appearances. This process might also take several months as the court schedules and reschedules events, giving him a chance to appear.
Eventually, if you show up for all scheduled proceedings and your spouse does not, the court will treat your divorce as an uncontested matter. Your spouse's lack of participation signals the court that he is no longer contesting; he has done nothing to protect his rights. Ultimately, the court will grant your divorce and will most likely award you everything you requested in your divorce petition. If your spouse filed the initial petition, this might slightly complicate the matter. If you or your attorney filed a counter-petition in response, this acts as your own lawsuit and the court will grant the requests you included in the document. However, if you or your attorney filed an answer to the petition and did not specifically ask for your own relief, you may have to file an amended pleading, making these requests. If you don’t have an attorney, consult with one to find out if this is required.
Issues With Children
If you have children and your spouse is missing, the court will award you custody. A judge will probably also order child support in the event your spouse ever turns up again. You can protect your right to collect from him by registering with your state’s child support collection unit and placing a copy of your decree on file with them. Some state collection units will actively try to locate him to force him to pay the child support he owes.
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.