How to Divorce in Florida if Your Spouse Is Nowhere to Be Found
By Beverly Bird
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One of the basic freedoms that comes with living in America is that no one can force you to stay married – even if your spouse disappears. Most states have specific laws for dealing with this situation, and Florida is no exception. If you want to officially end your marriage but you have no idea where your spouse is, the state's legislative code sets out exactly what you must do to obtain a divorce.
It's a constitutional right that an individual who is being sued must receive notice of the lawsuit so he can defend himself against it. This is known as service of process, and in Florida divorce cases, it typically involves the sheriff or a private process server personally handing him a copy of the divorce petition. If your spouse is nowhere to be found, this obviously isn't possible. In such a case, you petition the court for permission to use constructive service instead. Under Florida law, constructive service means publishing notice of your divorce action in a newspaper once a week for four consecutive weeks. You can't just pick a newspaper at random; it must be "qualified." Check with the family court clerk first before you publish to make sure the newspaper you've chosen is acceptable.
The court will not permit you to use constructive service unless you prove that you looked for your spouse, and that you looked hard. You must conduct a diligent search for him. Florida has a special form you must complete – an Affidavit of Diligent Search and Inquiry. File the affidavit with your petition seeking permission to serve your spouse by publication. The form asks you to check off exactly what methods you used to try to find your spouse. For example, you must ask the post office for a current address and contact your spouse's relatives, his last known employer and local police. You must also ask the Department of Motor Vehicles for his last known address, and you should also check for a death certificate in case he's no longer living. After you've completed your search, you can file your petition and the affidavit with the same county court where you filed your divorce petition. If everything is in order, the court will give you permission to publish your notice.
If your spouse is no longer living in the circulation area of the newspaper you've chosen, he probably won't know that you've published notice of your divorce action. This doesn't matter – the fact that you've properly published the notice still constitutes service of process. If he doesn't file a response to your divorce petition within 20 days after your last published notice, you can ask the court to grant you a divorce by default by filing a motion requesting this. The court will advise you of a date for the default hearing.
You'll get your divorce at the default hearing, but you may not be able to achieve much more than this if your spouse is missing. Constructive service doesn't give the court jurisdiction over him the same way personal service does. This means the court can’t make certain decisions that legally bind him. For example, if you have children, a judge can't order child support in a default hearing because if your spouse doesn't know that support has been ordered, he can't be held responsible for not paying it. Likewise, the court can't order alimony for you or even address issues of property division. You're free to move on with the rest of your life, however, because you will have a final divorce decree.
- Florida State Courts: Notice for Action of Dissolution of Marriage (PDF)
- Vari & Associates: You Can Run But You Can't Hide From a Florida Divorce
- Pamela S. Wynn: Florida Divorce – Serving the Petition
- Justia.com: 2005 Florida Code Civil Practice and Procedure, Constructive Service of Process Chapter 49
- Florida State Courts: Affidavit of Diligent Search and Inquiry (PDF)
- Florida State Courts: Motion for Default (PDF)
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.