How Do I Get a Divorce if I Don’t Know Where My Spouse Is?
It’s not uncommon for spouses to separate into different households without legally ending their marriage. When that happens, there may come a time when one of the partners wishes to officially dissolve the current marriage in order to remarry or fulfill some other goal. To do so, they will need to petition for divorce and receive a response from their previous spouse.
But what happens if you can’t locate that person? Without filing for a legitimate divorce, the law still recognizes the marriage as intact. Fortunately, there are options. If you want to end your marriage but have no knowledge of where your spouse is, you need to understand your rights and how to divorce a missing spouse.
In New Mexico, a marriage can be dissolved when a spouse cannot be found through a process called Divorce by Publication. There are multiple steps to completing this process, which is why it’s beneficial to have a divorce lawyer by your side. New Mexico Financial & Family Law is here to help. While divorce often involves a short-term process, we have the resources needed to ensure you are set up for long-term success.
What Happens When a Spouse Cannot Be Found in New Mexico?
While most divorce proceedings take place with an active petitioner and respondent, there are instances where only one spouse is available. In that instance, it is likely that the other spouse is missing and cannot be found, or they have moved to a different state or country without providing a forwarding address.
In New Mexico, you have to serve your spouse papers within a reasonable time after filing for divorce. If you cannot find them in that time span, you may still be able to move forward with the action. To obtain a Divorce by Publication, you need to convince the judge with a sworn declaration that you have performed a good faith effort in looking for the respondent, but to no avail, following the search requirements established by the state.
If you are unable to locate your spouse, you can file a Motion to Serve by Publication. The judge will review your motion and either deny or grant your request. Keep reading to learn more about the search requirements and the Divorce by Publication process.
Understanding New Mexico’s Search Requirements and Process
The state of New Mexico requires the petitioner filing for divorce to make a good faith effort to find their missing partner. This genuine search could include checking phonebooks or directories in the area where the absent spouse was last known to live, asking friends or family members who may be aware of their location, checking with the post office for a forwarding address, and using other potential leads to attempt to locate a current primary residence.
The process for conducting a genuine search is outlined in a document the court provides, known as an Affidavit of Diligent Search. The document must be filled out and submitted, indicating that the petitioner exhausted all options and resources for locating their spouse. Upon submission, the court reviews the affidavit and determines if the petitioner followed the outlined methods in an attempt to find their spouse. Only then will the court issue a Divorce by Publication.
Note that if the court does not accept your affidavit, your case will be dismissed, and you will have to appeal the dismissal or file a new case, beginning the process over again.
Filing for Divorce by Publication
When issued a Divorce by Publication, the petitioner must use Service by Publication to publish a notice in their local newspaper informing the missing spouse of the pending dissolution. The notice is required to be published at least once a week for four consecutive weeks. If the four weeks pass without word from the missing spouse, the divorce action moves forward by default, and the dissolution is granted.
If a default divorce is granted, the court will likely accept the orders requested so long as they are deemed reasonable. If you have children under the age of 19, the court will review New Mexico’s best interest standards before making decisions regarding child support and custody. Default divorces are final and just as valid as any other type of divorce.
When a missing spouse appears within a certain amount of time after the divorce is finalized, they have the right to ask the court to overturn the default ruling. The judgment may be set aside if the spouse is able to provide a good reason for not responding to the initial divorce petition. However, the burden is on the spouse to provide a valid reason for their non-response and legitimate legal concern about their own rights or the best interests of their children.
Hiring an Attorney to Divorce a Missing Spouse
As you can tell, filing for divorce against a spouse you cannot locate can be a challenge. That is why it is essential to consider hiring a divorce attorney. When you seek guidance and representation from a lawyer specializing in divorce matters, they will ensure you understand your rights and options. Depending on the circumstances, they may also be able to help you locate your spouse or provide you with the resources you need to conduct a thorough search.
The sooner you get in touch with an attorney, the more time you will have to determine how best to proceed based on your situation. If your spouse turns up, they can also help you move through the more typical divorce process and ensure you are on the path to receiving or retaining any property or compensation that is rightfully yours.
Get Help From a New Mexico Divorce Lawyer
Filing for Divorce by Publication can seem overwhelming, especially if your spouse is missing. When you seek legal representation from a divorce attorney from New Mexico Financial & Family Law, you can rest assured that you will understand your rights and what steps you need to take to see the divorce process through.
With over two decades of experience, our attorneys focus on your best interest and the best interests of your children and assets. If you are looking to learn more about this process or other ways a divorce can take place, schedule a no-obligation consultation with our law firm today. Reach out online or call us at (505) 503-1637.