Can Custody Be Awarded in a Missing Spouse Divorce in Florida?

By Mary Jane Freeman

Life isn't perfect and neither are marriages. Sometimes spouses walk away and disappear, not only from their marriages but also their children's lives. If your spouse is missing and you want a divorce, you're not stuck. Florida law allows you to terminate your marriage and obtain custody of your children. However, you'll have to complete a few extra steps to do so. This is because Florida wants to make sure you did everything possible to locate your spouse and give him an opportunity to participate in the process, including having a say about what happens to your children.

Life isn't perfect and neither are marriages. Sometimes spouses walk away and disappear, not only from their marriages but also their children's lives. If your spouse is missing and you want a divorce, you're not stuck. Florida law allows you to terminate your marriage and obtain custody of your children. However, you'll have to complete a few extra steps to do so. This is because Florida wants to make sure you did everything possible to locate your spouse and give him an opportunity to participate in the process, including having a say about what happens to your children.

Getting Started

The first step in obtaining a divorce in Florida and establishing custody of your children, even if your spouse's whereabouts are unknown, is to file a petition for dissolution of marriage in your local circuit court. On your petition, you must include your request for custody as well as a parenting plan outlining how you plan to care for your child. To ensure your spouse is aware of the pending divorce case and has an opportunity to respond and participate in the process, Florida requires you to serve him with a copy of the divorce petition and summons provided by the court. Since you don't know where your spouse is, the court will require you to take a few additional steps before it will permit your divorce case to proceed and deal with the issue of custody.

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Publication

When you can't locate a spouse, Florida law allows notice of the divorce to be made by publication, also known as constructive service. Essentially, this is when notice of the case is posted at the courthouse or in an approved newspaper of general circulation for 30 consecutive days. Before you can serve your spouse in this manner, you must prove to the court that you have made diligent efforts to find your spouse and get the court's approval. To do this, you must complete and submit an affidavit of diligent search and inquiry, which details all of your specific search efforts, from contacting past employers and family to researching DMV, traffic and criminal records. If the court is satisfied with your search efforts and approves your request, it will post notice of the divorce action at the courthouse or give you permission to publish notice in an approved newspaper.

Custody

Once the 30-day publication period has passed and no response has been received by your spouse, the court will proceed with your divorce and schedule a hearing. This is typically referred to as divorce by default. At the hearing, the court will evaluate your request for custody, referred to as parental rights and responsibilities in Florida. When spouses divorce, Florida courts typically grant shared parental responsibility to both parents, which means both spouses share decision-making responsibility concerning their child's upbringing, such as religion, schooling and health care. The court also devises a time-sharing schedule which outlines the periods of time, such as overnights, vacations and holidays, each parent has with the child. Since your spouse is missing and therefore unable or unwilling to participate in your child's life, the court is likely to award you both sole parental responsibility and custodial time with your child. However, it will only do so if it is in the best interests of your child. The court evaluates such factors as the needs of your child, your ability to provide a stable home environment and your physical and mental health.

Divorce Decree

When you are awarded sole parental rights and responsibility, the court includes this custody order in your divorce decree. If the whereabouts of your spouse remain unknown when the divorce is finalized, the court is unlikely to address issues of child support or alimony, but you can later petition the court for child support if you discover where your spouse is. With respect to dividing the marital property -- property acquired during the marriage -- the court divides it equitably between you and your spouse, which may result in an unequal split. To make this determination, the court looks at a variety of factors, including the length of the marriage, contribution each spouse made to the marriage, including care and education of children and services as homemaker, and each spouse's economic circumstances.

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Temporary Visitation Rights

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