Thomas E. Little

Going through a divorce is difficult under the best of circumstances. There are a few factors that can make a divorce even more complicated. One such factor is when the other spouse can not be found. Essentially, this is an abandonment divorce. In these situations, the law does provide ways to complete the divorce.

Every divorce begins with the filing of a “Petition.” The person who files the petition must then either 1) have the other spouse served with citation (meaning they were served), or 2) the other spouse must sign a waiver of process, which basically says that they have received a copy of the petition and do not need to be served. The problem with a spouse who has abandoned the marriage and can’t be found is that they can’t be served, and they’re not willing to sign the waiver.

Under these conditions, the law does allow the spouse who filed to serve the other spouse using “citation by publication.” This is publishing a legal notice in the local newspaper. Some judges may allow a person to be served with legal notice through certified mail, or in some cases, even through social media.

After the absent spouse has been served through “citation by publication,” then the divorce may proceed like a typical divorce. The time frame to complete the divorce is then going to depend on if there is substantial community property of the married couple, or if there are children of the marriage.

Appointment of an Attorney Ad Litem

Typically, if a spouse can’t be found, the Court will appoint an Attorney Ad Litem. An Attorney Ad Litem is another attorney who is appointed to represent a party’s interest. In this case, an Attorney Ad Litem would be appointed to represent the spouse who abandoned the marriage. It’s the Court’s way of ensuring that the absent spouse is treated fairly throughout the court proceedings. Meaning that the spouse who filed the petition must still take all the necessary procedural steps through the divorce. The spouse who filed is not allowed to cut corners just because the other spouse doesn’t engage in the proceedings.

The person appointed as the Attorney Ad Litem is entitled to be compensated reasonably. Having an Attorney Ad Litem is an additional cost. Since no one else is involved, the spouse who filed the petition must pay the fees for the Attorney Ad Litem.

If There Are No Children of the Marriage or Substantial Community Property

If the Court finds that there are no children of the marriage under the age of 18, and there is no “appreciable amount” of community property, the Court does not have to appoint an Attorney Ad Litem. This will allow the spouse who filed the petition to complete the divorce quicker, easier, and most importantly, cheaper. The spouse who filed must still wait the required 60-day waiting period before completing the divorce.

If the spouse who abandoned the marriage is an active duty member of the U.S. military, then the Service member’s Civil Relief Act (SCRA) may apply to them and afford them additional protections.

Contact Hayes, Berry, White & Vanzant

If you are in need of an abandonment divorce, then contact the family law attorneys at Hayes, Berry, White & Vanzant. Give us a call to set up a consultation at (940) 387-3518, or contact us here.