Divorcing a Missing Spouse in Florida

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So you want a divorce and you are ready to file. You commence your divorce action by filing your Petition for Dissolution of Marriage along with other pertinent documents and you have the Clerk of Court issue the Summons. Now you must serve your spouse. In order to effectuate service, you engage the Sheriff’s Office or a private process server and then it happens – you are told that your spouse is nowhere to be found. So what are you to do now? First, you must be aware that you can still get divorced. Second, you must decide on your ultimate goal — is it to just get divorced or is it to get support and property in addition to a divorce. Once you are able to identify your ultimate goal, you would then be in a position to take all the necessary action to reach that goal.

Specifically, if you are looking for support and property in addition to a divorce, you should then be aware of Rule 1.070(j) of the Florida Rule of Civil Procedure. Pursuant to such Rule 1.070(j) of the Florida Rule of Civil Procedure, service must be perfected within one-hundred and twenty (120) days. That gives you four months within which to locate your spouse. If you are approaching this 120-day deadline, and it is becoming evident that service will not be accomplished within this requisite time, you may then want to pursue a Motion for Extension of Time to Serve. Provided you are able to show the court “good cause” for failure to serve your Petition for Dissolution of Marriage within the requisite 120 days, additional time to serve your spouse will likely be granted. See Pixton v. Williams Scotsman, Inc., 924 So. 2d 37, 39 (Fla. 5th DCA 2006) (quoting Chaffin v. Jacobson, 793 So. 2d 102, 104 (Fla. 2d DCA 2001)).

However, what if even after the extension has been granted by the trial court you still are unable to locate your spouse for service? What do you do then? At that point you may want to reassess your ultimate goal and either pursue another extension or a divorce by publication.

So what actually is divorce by publication? Divorce by publication is where you serve your spouse through constructive service by publishing a Notice of Action in a newspaper published in the county where the Court is located for four consecutive weeks. Such Notice of Action can only be published after you have first made a good faith effort to locate your spouse and have documented those efforts in an Affidavit of Diligent Search and Inquiry that would have been filed with the Clerk of Court prior to and as a prerequisite to having the Notice of Action issued by the Clerk for publication. If your spouse fails to respond to such Notice of Action within the requisite time, you may then pursue a Clerk’s Default against your still missing spouse. Once such a default is entered against your spouse, you may then proceed with the scheduling of the final hearing.

However, it is important to be aware that the relief the Court may grant in a divorce by publication is limited. Though the Court can grant you a divorce, the Court will be unable to equitably distribute any property and debt and will not be able to adjudicate issues pertaining to spousal support/alimony, child support and timesharing.

Subsequently, you can still get divorced when your spouse goes missing. However, depending on your ultimate objective with your divorce action, it may actually be worthwhile to take some time to secure personal service on your spouse rather than just jump into constructive service and leave the property and child-related issues for future adjudication.

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