Can I file for divorce if I do not know where my husband is?

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Can I file for divorce if I do not know where my husband is?

I’m in the military and was stationed in Utah. We got married in Utah in 1995 and have been separated since 2000. I am a legal resident of New Mexico; my husband is not. I need to file for divorce before I retire from the military, but cannot locate my husband.

Asked on June 23, 2009 under Family Law, New Mexico

Answers:

J.V., Member, New Jersey Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

To begin regardless of your husbands location in order to get divorced in New Mexico, either you or your spouse must have been a resident of the state for at least 6 months and have a place of residence in New Mexico, I assume you will fit into this category.

Now if you cannot locate your husband what you will need to do is file the complaint for divorce. Now the process can get a bit confusing and the best advice I can provide is that you hire a local attorney to handle this matter. However to give you a synopsis of the process you file the initial complaint stating you want a divorce. You will want to be specific, give the reasons for this provide the background, any kids, financial situation etc. You may also need to file a summons and oftentimes there is a joint preliminary injunction issued upon the filing of the papers.

Once the Complaint has been filed, you must make the attempt to locate and serve your missing spouse with the Complaint, Summons, and Joint Preliminary Injunction. There is a time limit to serve a person and I am not sure of the time in NM but a clerk can answer that for you.

If, after you have used all means available to you to find your spouse and you cannot locate him, you can return to the Court and file a request to serve by publication. Such a request normally includes a Motion For Service By Publication and an Affidavit stating you have used due diligence to locate your spouse. The Judge will issue an Order for Service by Publication.

You will need to follow the guidelines set forth by the court to have the notice of service published in a local paper where you knew your spouse to have last resided. You will need to refer to the courts rules for how often and long you must publish this notice.  Upon the last publication, the newspaper will send you an Affidavit of Publication.

With the affidavit yu willfile it with the court and there will be a time frame for your husband to file an answer. If your huband does not respond by that time, you will need to file for Default.

Filing for a default normally requires  a Motion and Affidavit for Default, proposed Default Decree of Divorce, Affidavit of Non-Military Service, and Certificate of Divorce.This can get very confusing and I would recommend using a local attorney but you can get a divorce without knowing your husbands location it just requires a little work on your end. Good luck.


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