Divorcing Someone Who Has Disappeared

By Ben Hartwig
20 May, 2019

Disappearing spouses are the subject of many country songs (Chris Cagle sings, “..there’s gone for good and there’s good and gone, and there’s gone with the long before it..”) as well as the subject of many divorces.

As many as 85,000 people are classified as missing in the United States at any given time. Of those, 50,000 are adults. The problem is significant enough that the U.S. government partnered with a college to create a missing persons online database, NamUs. It’s an attempt to put names with the 4,400 unidentified corpses discovered across the country each year, of which more than 1,000 remain unidentified for a year or longer.

Some of these cases get media attention, but many do not. Stories of lives complicated and shortchanged after the disappearance of a loved one go untold. And some end up in divorce court, seeking to sever a relationship that no longer exists.

Divorce grounds: desertion or abandonment

Most states have adopted no fault divorce laws that do not require proof of abandonment or desertion in order to execute a divorce. This streamlines the process and makes it less expensive. No fault divorce does not preclude establishing alimony or support payments, but those who wish to claim significant sums or who believe their spouse is hiding assets to avoid losing money in a divorce may opt for an “at fault” divorce.

In the case of a disappearance, the spouse left behind may want a divorce from one who has disappeared in order to get remarried or simply to move on. But if there are assets left behind, like a car parked in the driveway, the remaining spouse may seek an “at fault” divorce in order to get the court to award ownership of those items for the purpose of paying bills.

Divorce by publication

Disappearances are common enough that there’s a process for divorcing a person who has simply walked away: divorce by publication. Usually, divorce papers must be signed by both spouses to acknowledge the process. Even if one walks away during the process (which can take months or years), the initial signature is enough to continue the divorce process.

If the person is missing prior to the divorce petition, legal notices must be placed in newspapers and likely posted in specific locations (city hall, or a courthouse) as public notice that a divorce is being sought, called divorce by publication.

Once the notice period has passed, the petitioner must submit an Affidavit of Diligent Search to the court, and if it’s in order, the court can proceed with the divorce. Cases that involve minor children are likely to be more complicated, as Florida’s form states. Arizona’s requirements that include searching telephone books is likely to be more challenging as fewer people have traditional land lines than cell phones these days. New Jersey’s requirements are stringent, including multiple letters to family members and a search of motor vehicle licensing records by the state DMV.

Declaring someone dead

Tens of thousands of people commit suicide every year, or go for a hike and never return. Some of them can be declared dead by a court after a specific period of time has elapsed. States set the period, often between five and seven years, and have other criteria for such a declaration, including:

  • Proof (sworn statements) that the individual hasn’t contacted friends or family;
  • Proof that accounts remained untouched and credit cards unused during the period;
  • Evidence of a search that exhausted reasonable efforts to find the person, and
  • Police records of the original missing persons report.

Those who are missing but were in imminent peril, such as on a ship that sank, on the passenger list of an aircraft that crashed, etc. can be declared dead without the necessary waiting period.

If this sort of disappearance is likely, it may be wise to submit a petition for death in abstentia to the court rather than seek a divorce first. Once a person has been declared dead, any marriage is over and his or her assets can be divided normally among heirs or beneficiaries.

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