Divorce by publication (lost or missing spouse)
When a spouse wants to divorce their husband or wife, but the spouse cannot be found, is avoiding service, or is hiding, divorce by publication comes into play. Service by publication is commonly used in a divorce action to serve a spouse who has disappeared without leaving a forwarding address.
Step 1 - File a petition for divorceAs with any divorce, you want to file a Petition for Dissolution of Marriage and accompanying initial paperwork. A divorce packet may be picked up from the clerk of court at the courthouse or the Florida Supreme Court Forms may be found online. Check the clerk of court website for your specific county to find these forms or check out flcourts.org.
As an example we will use Orange County. Forms and filing instructions for filing for divorce may be purchased in room 320 of the Orange County Courthouse or customers may obtain forms by visiting www.flcourts.org.
1. When you are ready to file for divorce, take completed forms to room 330 of the courthouse before 3:30 p.m. to be reviewed and notarized.
2. Return to room 320 to file the completed documents.
3. Once the case is filed, Family Court Services will contact the petitioner with instructions (usually within 30 days).
You may also file the paperwork electronically if you so choose.
Step 2 - Try and have your spouse servedHire a process server. If you know where your spouse lives or has lived or where your spouse works, try and have your spouse served. If unknown, ask the process server to do a skip trace and try and have your spouse served at the last known address.
Step 3 - Comply with Florida's diligent search requirementsA party is entitled to actual notice of a proceeding when possible. Florida courts require a good faith effort by the Petitioner to prove that he or she has made a genuine search for his or her missing partner. While you do not have to take every step listed below as the list is not complete, the court must believe that you have made a very serious effort to get information about your spouse's location and that you have followed up on any information you received.
The following is a list of actions the Court may find reasonable that a diligent search has been made:
____ United States Post Office inquiry through Freedom of Information Act for current address or any
____ Last known employment of Defendant, including name and address of employer. You should also ask
for any addresses to which W-2 Forms were mailed, and, if a pension or profit-sharing plan exists, then
for any addresses to which any pension or plan payment is and/or has been mailed.
____ Unions from which Defendant may have worked or that governed his or her particular trade or craft.
____ Regulatory agencies, including professional or occupational licensing.
____ Names and addresses of relatives and contacts with those relatives, and inquiry as to Defendant's last
known address. You are to follow up any leads of any addresses where Defendant may have moved.
Relatives include, but are not limited to: parents, brothers, sisters, aunts, uncles, cousins, nieces,
nephews, grandparents, great-grandparents, former in-laws, stepparents, stepchildren.
____ Information about the Defendant's possible death and, if dead, the date and location of the death.
____ Telephone listings in the last known locations of Defendant's residence.
____ Internet at http://www.switchboard.com or other Internet databank locator service. Please indicate if a
public library assisted you in your search.
____ Law enforcement arrest and/or criminal records in the last known residential area of Defendant.
____ Highway Patrol records in the state of Defendant's last known address.
____ Department of Motor Vehicle records in the state of Defendant's last known address.
____ Department of Corrections records in the state of Defendant's last known address.
____ Title IV-D (child support enforcement) agency records in the state of Defendant's last known
____ Hospitals in the last known area of Defendant's residence.
____ Utility companies, which include water, sewer, cable TV, and electric, in the last known area of
____ Letters to the Armed Forces of the U.S. and their response as to whether or not there is any information
about Defendant. (See Memorandum for Certificate of Military Service, Florida Supreme Court
Approved Family Law Form 12.912(a).)
____ Tax Assessor's and Tax Collector's Office in the area where Defendant last resided.
Importantly, have your process server also prepare an affidavit of diligent search and attached it to your affidavit of diligent search.
Sample forms and letters to various agencies may be found online and at http://www.jud4.org/Family-Court-Services-(Self-Help)/Service-by-Publication
Step 4 - File an affidavit of diligent searchGo to your clerk of court's website and locate the form called Affidavit of Diligent Search. The same may be found on flcourts.org.
Once you have completed and notarized the form, file it with the clerk of court.
If, however, during your search for the other party, you locate his/her address, then you must have him/her served by personal service as provided for in Chapter 48 of the Florida Statutes. It will then be unnecessary to file the Affidavit of Diligent Search and Inquiry.
Step 5 - Filing for divorce by publicationAfter the Affidavit of Diligent Search and Inquiry and supporting documentation is filed and approved by the court, you will to publish notice once each week for four consecutive weeks in a "qualified" newspaper in the county where the case is pending.
The cost of publication varies depending on the newspaper.
Step 6 - File motion for defaultIf the missing spouse does not respond in the time allotted (28 days), the Petitioner files a Motion for Default, and the action proceeds as a default divorce.
Please note that If you use constructive service and your spouse is never actually served, the court can grant only limited relief because its jurisdiction is limited. In other words, the court can grant the divorce in a publication action, but it cannot make any decisions regarding child custody, child support, alimony or division of property.
Step 7 - Schedule final hearingDepending on the county, you or the clerk of court will schedule a final hearing in your case. Additional instructions will be provided to you regarding date and time of the hearing. At the end of the final hearing, you will be divorced (if everything was done properly).