Can I file for divorce in New York under the terms of neglect if I don’t know where my spouse is?
3 attorney answers
Yes, you can certainly get divorced even if you don't know the whereabouts of your husband--it's a bit more complicated to do so than when you can easily find/serve your spouse, but it can be done. You may also be able to change the beneficiary of your 401(k) without a divorce, so you should check to confirm if this is possible. That said, if your spouse has been absent for such a long time, as a matter of good "housekeeping" if nothing else, you should still proceed with a divorce. I suggest you get in touch with an experienced NY divorce attorney as soon as possible for specific guidance and advice. Good luck!
All of Ms. Brown's responses to questions posted on AVVO are intended as general information based upon the facts stated in the question, and are provided for educational purposes of the public, not any specific individual, and her response to the question above is not legal advice and it does not create an attorney-client relationship. Ms. Brown is licensed to practice law in New York. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state.
The first thing you should do is see whether you can change the beneficiary of your 401k. You should go to HR and ask.
If the beneficiary cannot be changed without a court order, you should seek a consultation with an experienced divorce attorney. A divorce is more complicated when you do not know your spouse's address; however it is still possible to get divorced without the address.
Your last choice and least desirable due to the tax consequences would be to withdraw the money and put it into another account where your children are listed as the beneficiaries. Depending upon your age, you could lose up to 35% - 40% of the money in the accounts if withdrawn before the 59.5 years of age.
Advice on this forum is for informational purposes only and should never be mistaken as a substitution for legal advice. Answering a question does not create an attorney client relationship. If you need legal advice, you should consult or retain legal counsel.
You can divorce him as part of DRL236(7), irretrievable differences. Please see an attorney.
This information does not constitute Attorney-Client Privilege. Please speak with an attorney before representing yourself in Court, even if its just an in person consult.
Sign up to receive a 10-part series of useful information and legal advice about the divorce process.