Procedure

There are many reasons that marriages end. Whatever the reason that you are considering a divorce, it must fall under one of the legal grounds for divorce described in New York Domestics= Relations Law such as abandonment, imprisonment, adultery, separation, cruel and inhuman treatment, and irretrievable breakdown in the relationship. Abandonment as a grounds for divorce is described as being gone for at least one year. Unfortunately, sometimes being gone does not mean or does not only mean that one spouse has abandoned the other. It can also mean that the spouse is likely dead. However, in order for the court to legally end your marriage based on the likelihood that your spouse is deceased, you must properly petition the court and follow all of the required procedures. If you would like your marriage dissolved because you believe your spouse is deceased, contact an experienced New York divorce lawyer to review the facts of your case to determine the best course of action.

Procedure for divorce due to absence

According to NY Dom Rel Law § 170(2), if your spouse has been absent for at least one year, you have grounds for seeking a divorce. If the absence if for at least 5 years, not only can you seek a divorced based on him or her being absent for an extended period, but based on your belief that your spouse is likely dead. According to NY Dom Rel Law § 221, the first step is to file a petition. The petition must state the following details:

1. That your spouse has been absent for at least 5 consecutive years
2. That you do not know where your spouse has been living during that time
3. That you believe that your spouse is dead
4. That you have diligently searched for him or her

The next step is for you to publish a notice of your petition in a newspaper for 3 consecutive weeks. The notice must be directed to your absent spouse and must be published in a paper that is likely to give notice to your spouse. The notice must include both your name and your attorney’s name, as well as the details of the time and place of the hearing. Before a judge will grant your petition, it must be satisfied that reasonable efforts were made to find your missing spouse and alert him or her of the hearing on the petition.

Related Statutory Provisions

1. Action for divorce: New York Domestic Relations Law, section 170
2. Action for separation: New York Domestic Relations Law, section 200
3. Special proceeding to dissolve marriage on the ground of absence: New York Domestic Relations Law, section 220

Domestic Relations Law, section 221: Procedure

The petition shall allege that the husband or wife of such party has absented himself or herself for five successive years then last past without being known to such party to be living during that time; that such party believes such husband or wife to be dead; and that a diligent search has been made to discover evidence showing that such husband or wife is living, and no such evidence has been found. The court shall thereupon by order require notice of the presentation and object of such petition to be published in a newspaper in the English language designated in the order as most likely to give notice to such absent husband or wife once each week for three successive weeks; such notice shall be directed to the husband or wife who has so absented himself or herself and shall state the time and place of the hearing upon such petition, which time shall be not less than forty days after the completion of the publication of such notice; said notice must be subscribed with the name of the petitioner and with the name of the petitioner's attorney and with his office address, specifying a place within the state where there is a post-office. If in a city, said notice must also set forth the street and street number, if any, of such attorney's office address or other suitable designation of the particular locality in which said office address is located. In addition to the foregoing requirements said notice must be in substantially the following form, the blanks being properly filled: “Supreme court, ․․․․․․․․․․․․ county. In the matter of the application of ․․․․․․․․ for dissolution of his or her marriage with ․․․․․․․․․․․․․․․․․ To ․․․․․․․․: Take notice that a petition has been presented to this court by ․․․․․․․․, your husband or wife, for the dissolution of your marriage on the ground that you have absented yourself for five successive years last past without being known to him or her to be living and that he or she believes you to be dead, and that pursuant to an order of said court, entered the ․․․․․ day of ․․․․․, 19․․, a hearing will be had upon said petition at the said supreme court, ․․․․․․․ term part ․․․․․․․, in the ․․․․․․․․․ county court house, in the ․․․․․․․․․ state of New York, on the ․․․․․ day of ․․․․․, 19․․, at ․․․․․․ o'clock in the ․․․․․ noon. Dated ․․․․․;” and if the court, after the filing of proof of the proper publication of said notice and after a hearing and proof taken, is satisfied of the truth of all the allegations contained in the petition, it may make a final order dissolving such marriage.

Contact the Law Offices of Stephen Bilkis & Associates

If you are seeking to legally end your marriage on the basis that your spouse has been missing for an extended period of time, it is important that you contact an experienced New York divorce lawyer who understands the process for ending a marriage under these circumstances. With over 2 decades of experience representing clients in complicated divorces and annulments, the attorneys at the Law Offices of Stephen Bilkis & Associates can help. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Bronx, Brooklyn, Long Island, Staten Island, Queens, Westchester County, Manhattan, Suffolk County, and Nassau County.