Tuesday, November 17, 2015

Missing Spouse

Oh this one comes up a lot lately.   I have no idea why there is a sudden run on people wanting a divorce after being separated for years.   I mean that literally, years.   Then they wander into the clinic or call my office wanting to know how they can get a divorce.   Usually no kids no property so pretty easy right?   Not so fast.   They have no idea where the missing spouse is.

You see there is this pesky thing called the U.S. Constitution.   The Sixth Amendment says no on will be deprived of life, liberty or property without due process of law.   Now, in a divorce, no one gets killed, and you get liberty not be deprived of it.   However, divorce is about property.   Pure and simple.  Oh and money.   But for the purposes we are discussing now, let's just say money is property.   That means a decision about the property cannot be made by the court without due process.

What is due process?   Well that means the person is afforded a chance to make his/her case in court.  In order to be afforded the chance, one has to know there is a court case.   That means getting served with the divorce Complaint.   The spouse has to receive the documents.   If the missing doesn't know about the case, the court is not going to act.

What does this mean for the person wanting a divorce?   It means putting in some effort to locate the person.   One can't just throw up one's hands and say "I have no idea where they are."   It means knowing a last address.   It means contacting friends and family.   It means going on Facebook and doing a search.   If one doesn't put in the effort, the court is not going to make an exception in the case and proceed without proper notice.   And I can guarantee the attorney is not going to pay out of pocket to hire a private investigator or even do all the things I suggested for free.   If you want to pay an attorney to do the search fine.   But if you want the divorce but don't want to pay or don't want to put in the effort, it is not going to happen that simple.

Okay, you've made an effort, you did all those things.   You just can't find the person.   All is not lost.  You can still get what we call "alternate service."   But that is the last attempt not the first.   You would not believe the people who want to go right to posting at the courthouse.   In order to get to alternate service, the judge has to sign off on serving that way.   And no judge is going to sign off on just posting without any other efforts being made to locate the person.   Because the person has to know there is a court case.

If you want a divorce, get one sooner rather than later.   If you wait years, the other person can wander off.   Thereby creating huge headaches that a lawyer cannot wave their magic law wand and solve.

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