It is not uncommon for a spouse to go missing during a divorce. Some people mistakenly believe the divorce cannot proceed if they do not participate in the divorce proceedings. However, this belief is incorrect.
The court can finalize a divorce without the missing spouse’s involvement. While the missing spouse’s absence will likely cause a delay in the divorce process, the court will eventually issue a divorce judgment against the absent spouse.
This article will discuss what happens when your spouse disappears during your divorce. We will explore the various scenarios that may arise and what you can do to protect your interests and move forward with the divorce process.
Divorce and The Disappearing Client
You should immediately let your attorney know if your spouse has disappeared during the divorce. Your attorney can then contact the opposing attorney to see if the attorney knows how to contact your spouse.
A lawyer has an ethical duty to communicate regularly with their client and keep them informed about the case. If a client is unresponsive or missing, the lawyer cannot fulfill these duties and will likely be required to withdraw from the case.
However, before doing so, the lawyer must make a good-faith effort to locate the client and inform them of what is going on in the case and of their intent to withdraw.
The following are the steps an attorney must ethically take to attempt to locate a lost client before withdrawing from the case:
1. Call or Send an Email
The lawyer will first attempt to contact their client through a phone call or email to request an update on their situation. The lawyer will document and record the attempts to contact the client.
2. Try Other Forms of Communication
If a phone call or email does not work, if the lawyer has the client’s alternate phone number or email address, they will attempt to contact them through these channels. The lawyer will also document and record these attempts to contact the client.
3. Send a Certified Letter to the Last Known Address
The next step for the attorney will be to send a certified letter to the last known address of their client. A certified letter provides proof of delivery and can serve as evidence that the lawyer made a good-faith effort to contact their client.
Additionally, sending a certified letter is often required by law or court rules before a lawyer can withdraw from a case due to a client’s unresponsiveness.
4. Seek Guidance From The Court
If a lawyer still has not heard from their client, they will seek guidance from the court on how to proceed. The court may instruct the lawyer to take additional steps to locate their client, such as hiring a private investigator or contacting the client’s family or friends.
If these efforts are unsuccessful, the court will allow the lawyer to file a motion to withdraw from the case.
What Typically Happens When Your Spouse Disappears During a Divorce?
When your spouse disappears during your divorce, here are some of the scenarios that we typically see arise:
1. After Unsuccessfully Attempting to Contact your Spouse, Your Spouse’s Attorney Will Withdraw From The Case.
If your spouse’s attorney cannot contact your spouse or has reason to believe that they have abandoned the case, they will seek to withdraw from representing them.
The attorney will file a motion to withdraw as attorney of record for your spouse. They will bring the matter before the court. If the court is confident the attorney has made a good-faith effort to locate their client before filing the motion, the court will allow the attorney to withdraw from the case.
This will cause a delay in the divorce, and while this may seem alarming, it can turn out that this can be an opportunity for you to speed up the overall divorce process by seeking a default judgment in your favor.
2. The Court Will Issue a Default Judgment.
After the other attorney withdraws, your attorney will file a motion for a default judgment against your spouse. The court will set the matter for hearing and will order the clerk to send certified notice of the date and location of the hearing to your spouse’s last known address.
If your spouse fails to show up for the scheduled court hearing, the court will issue a default judgment in your favor. This means the court will decide the divorce proceedings without your spouse’s input and you will be granted a divorce from your spouse.
What Happens With Child Custody if My Spouse Disappears During the Divorce?
Establishing a joint custody arrangement will be difficult or impossible if your spouse disappears during a divorce. Since your spouse will not be there to offer any objection, the court will likely award sole legal custody of the children to you or appoint a guardian ad litem to represent the children’s interests to ensure that awarding sole legal custody is in the children’s best interests.
If My Spouse Disappears During the Divorce, How Will Child Support Be Calculated?
If your spouse disappears during the divorce and you are seeking child support, the court will have to take alternative steps to determine the amount of child support owed. Here are some possible scenarios:
1. Imputed Income For Calculating Child Support
The court is likely to impute income to your missing spouse if there is evidence to suggest that they can earn income but are choosing not to work or cannot be located.
This means that the court will calculate child support based on what your spouse is capable of earning rather than their actual income.
2. Default Child Support Order
If your spouse does not respond to the court’s attempts to establish child support or cannot be located, the court will enter a default child support order against them. This means the court will set the child support amount based on available evidence and issue an order in their absence.
3. Post-Judgment Relief
If your spouse resurfaces after the divorce and believes the court’s child support order is unfair, they may seek post-judgment relief. This would require filing a motion to modify child support or seeking to have the default judgment set aside.
FAQs
Q: What happens if my spouse reappears during the divorce process?
A: If your spouse reappears during the divorce process, the proceedings will continue as a divorce normally would. The judge will likely grant your spouse time to hire an attorney, and the process of litigating will start all over again. You will have to work out a settlement with your spouse or proceed toward a trial if issues cannot be agreed to.
Q: Can I still seek spousal support or alimony if my spouse disappears during the divorce?
A: Yes, you may still be able to seek spousal support or alimony if your spouse disappears during the divorce. However, obtaining this payment on the spousal support may be difficult if your spouse cannot be located.
Conclusion
Divorce can be a complicated process, and when a spouse disappears in the middle of it, it can create additional complications.
If counsel represents your spouse, it is essential to understand what steps you can take to protect your interests and move forward with the divorce process. By being patient, getting your spouse’s attorney to withdraw, and filing a motion for default judgment, you can take control of the situation and ensure your interests are protected.