How to Divorce in Florida if Your Spouse Is Nowhere to Be Found

By Beverly Bird

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.

Constructive Service

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.

Diligent Search

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.

Divorce is never easy, but we can help. Learn More

Default Decree

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.

Limitations

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.

Divorce is never easy, but we can help. Learn More
How to File for Divorce if I Can't Find My Spouse in New Hampshire
 

References

Related articles

Order of Default for a Divorce in Maryland

If you file a complaint for divorce, your spouse has the right to respond to the complaint. But what if he's missing or hiding from your divorce action? Depending on the circumstances, after a period between 30 and 90 days and a good-faith search for your spouse, you can ask the court for an Order of Default, which will move the divorce process forward without your spouse's input.

How to: Divorce Notice for an Absent Spouse

If you’ve lost track of your spouse and no longer know where he’s living, you can still get a divorce. The law requires that your spouse must receive notice that you've filed for divorce but most states allow you to do this by publication when you can't find him to personally serve him with your paperwork. You'll have to take additional legal steps, but his absence doesn't mean you have to remain married to him.

What Are the Rules for Serving Divorce Papers?

Simply filing a complaint or petition isn’t enough to begin the process of getting divorced. The court can’t make decisions or rulings unless it has jurisdiction over you and your spouse. It gains jurisdiction over you when you meet residency requirements and file. It achieves jurisdiction over your spouse when he receives official and verifiable notice of the divorce so he has an opportunity to object to what you’re asking for. Both the Fifth and the 14th Amendments protect this right, called “due process.”

Get Divorced Online

Related articles

How to Place a Divorce Notice in a Newspaper

Although no law can force you to stay married to your spouse, he can make it difficult to divorce him if you can’t find ...

How to File for Divorce in South Carolina When the Spouse's Residence Is Unknown

Not all spouses run immediately to the courthouse to file for divorce when they separate. You might live apart for a ...

How to Get Divorced if the Spouse's Location Is Unknown

Although it’s possible to divorce a missing spouse, technology and the Internet might make it possible to avoid ...

How to Find Out If I'm Legally Divorced

The only definitive way to know if you are divorced is to locate a decree. However, not being able to find a decree ...

Browse by category
Ready to Begin? GET STARTED