Incognito: How to File for Divorce in Florida Without a Spouse

In some divorce cases one of the spouses either is not willing to participate or cannot be located. Often times these challenges take one of three forms: filing against a spouse who is out of state, filing against a spouse who does not wish to sign, or filing against a spouse you cannot locate.

In instances where there can be no amicable agreement, you may find yourself wondering how to best move forward. In the article below, you can read about various options for completing divorce with an unwilling or unavailable spouse in addition to some resources to help start your process.

The Basics

Generally speaking, you qualify for a divorce in Florida if the following requirements have been met:

  • Either you or your spouse have lived in florida for a minimum of 6 months
  • Your marriage is irretrievably broken

If you meet these requirements, most Florida divorce processes hinge on the same framework and follow the same set of procedures from beginning to end. To get better acquainted with what those steps are, we have a step-by-step article that goes through each phase of a common divorce.

My Spouse is Out of State

By far the easiest of out three potential scenarios is the spouse who is out of state.

In Florida, only one spouse must prove their residency to apply for a petition of dissolution. In addition to the basic requirements above, the resident of florida must also prove the two following items:

  • Both individuals maintained a home together in Florida as spouses
  • The out of state spouse accepts personal service or waives their right to contest Florida jurisdiction over the proceedings

If these requirements are met and no other obstacles arise, you can proceed with an otherwise normal divorce process as outlined above.

My Spouse Refuses to Sign

Sometimes a spouse will refuse to sign divorce papers as an attempt to stall the process. While this creates an unnecessary burden on the petitioner, it does not spell the end of your divorce.

In cases such as this, it is best to contact an attorney and begin the process of filing for a dissolution of marriage even without your spouse’s signature. This will lead down the road of a default divorce, a process in which the court grants a divorce even in the absence of the respondent spouse.

More information on default divorces (and how to complete them) and outlined below.

I Can’t Locate My Spouse

The most difficult divorces to complete fall into our final category: an incognito spouse.

Just because you cannot locate or contact your spouse does not mean you are stripped of your right to a divorce. Unfortunately, it does add a level of complexity to the process. Similar to when a spouse refuses to sign, you will need to follow an entirely different divorce process as outlined below.

  1. The Diligent Search
    When divorcing a missing or unresponsive spouse, Florida law requires the petitioning party to conduct a diligent search before concluding their partner really is unfindable.
    Conducting a diligent search involves doing everything in your power to locate your spouse before going to court. Only when you have tried every avenue to locate the individual and still come up unsuccessful can you seek court approval to continue your divorce in your spouse’s absence.
  2. Filling Out an Affidavit and Getting Court Approval
    After conducting a diligent search, you will be required to complete and submit an Affidavit of Diligent Search and Inquiry. Like the financial affidavit needed in a general divorce, this document is a fact statement of the efforts you took to locate your spouse.

This Affidavit goes through an itemized list of different search criteria you may have taken to locate your spouse and gives you a chance to elaborate on the details of your process. The form itself gives you the following options:

  • United States Post Office inquiry through Freedom of Information Act for current address or any relocations.
  • Last known employment of Respondent, 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 Respondent 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 Respondent’s last known address. You are to follow up any leads of any addresses where Respondent 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 Respondent’s possible death and, if dead, the date and location of the death.
  • Telephone listings in the last known locations of Respondent’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 Respondent.
  • Highway Patrol records in the state of Respondent’s last known address.
  • Department of Motor Vehicle records in the state of Respondent’s last known address. Florida Family Law Rules of Procedure Form 12.913(b), Affidavit of Diligent Search and Inquiry (11/12)
  • Department of Corrections records in the state of Respondent’s last known address.
  • Title IV-D (child support enforcement) agency records in the state of Respondent’s last known
    address.
  • Hospitals in the last known area of Respondent’s residence.
  • Utility companies, which include water, sewer, cable TV, and electric, in the last known area of
    Respondent’s residence.
  • Letters to the Armed Forces of the U.S. and their response as to whether or not there is any information about Respondent. (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 Respondent last resided.
  • Other: {explain}

A PDF form of the full affidavit is found at flcourts.gov.

Once this form is complete, it must be signed by a notary public and submitted as part of your petition for dissolution of marriage.

3. Divorce by Publication
After the appropriate actions have been taken and your spouse is still missing, the Florida Court allows you a divorce by publication.

As the name suggests, this method involves publishing your notice of divorce on a weekly basis in a newspaper certified in classified legal ads. This weekly publication is made for 4 consecutive weeks and, at the end of that time, is considered constructive notice. This counts as an official notice of divorce similar to that granted by having your spouse served papers by a process server.

This notice provides the petitioner with authority to enter a divorce by default and continue proceedings in the absence of their spouse. Default divorces further act as a bypass to negotiations of marital settlement agreements and potential trials. In cases where minor children are involved, this also means a high likelihood of being granted custody.

Getting Legal Advice

For many individuals, navigating the circuit court system in Florida is confusing an intimidating– an added and undue stress when dealing with an uncooperative spouse or a spouse in hiding. From initial filing in state court to the final dissolution of your marriage, the Dave Roy Law Firm can show you how to file for divorce in florida without a spouse.

Want to speak with an attorney? Simply call us at (561) 729-0095

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