Dear Ask the Attorney:
My husband walked out on our family more than 7 years ago. We have no idea where he is. Since I recently met someone I can see marrying again in the future, I was wondering if I can get a divorce?
Our guest blogger is Matheu D. Nunn, Esq., an associate with the firm of Einhorn, Harris, Ascher, Barbarito & Frost, PC in the Matrimonial and Family Law Departments, as well as the Criminal Law Department. He is also the current Morris Township Prosecutor.
I am sorry that those circumstances have befallen you and your family. The good news, and the short answer, is “yes” you can get a divorce – even if you cannot locate your current (soon-to-be “ex” spouse).
In order to do so, of course, you need to file a Complaint for Divorce. From there, however, the “missing-spouse” problem complicates the process. In a typical case, a Complaint for Divorce gets filed. Once filed, the Complaint is then served on the other spouse (the defendant). The defendant would then typically acknowledge service and he/she would have the opportunity to file an Answer or an Answer and Counterclaim for Divorce (where he/she would make requests for relief just as you do in the Complaint).
In the missing-spouse situation, there are two steps you must follow to effectuate “service” of the Complaint. First, after filing a Complaint for Divorce, you must undertake diligent efforts to locate your spouse. You can use public records searches, the internet, a private investigator, or any combination of methods. It may be a good idea to start the search with the last known address of your spouse. Once undertaking these efforts, and assuming after diligent inquiry you cannot locate your spouse, you must complete an Affidavit of Inquiry, which sets forth the efforts undertaken to locate your spouse. The Affidavit gets filed with the Court. Second, you must publicize notice of your Complaint in a newspaper published or of general circulation in the county in which the venue is laid (meaning, the County in which you filed the Complaint).
Once you have filed the Affidavit of Inquiry and publicized the divorce action in a newspaper of general circulation, you have “done your part.” Assuming that the Court is satisfied with your search efforts, your divorce may then proceed. You should consult a qualified matrimonial attorney who will make sure that efforts to locate your ex are sufficient enough for the courts to agree to allow you to divorce.
“Ask the Attorney” is a blog in which answers to questions submitted to firstname.lastname@example.org may be answered. The answers to the questions are for informational purposes only and are not to be construed as legal advice or the creation of an attorney-client relationship. The facts of each case are different; therefore you should seek competent legal representation.