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Special Proceeding to Dissolve Marriage on the Ground of Absence

When a spouse is absent for at least five successive years without his or her whereabouts being known by the other spouse, and the other spouse believes that the absent spouse is in fact deceased, upon petition a special proceeding will be initiated with the goal of issuing an order dissolving the marriage. Note that because such a proceeding is not the same as a divorce or an annulment, it is important you contact an experienced New York divorce lawyer who understands the complexities of an absent spouse case and has the knowledge and resources to assist you in the process of dissolving your marriage under such difficult circumstances.

Dissolving a marriage based on absence

One common legal reasons for ending a marriage are situations where the two spouses are physically absent from each other. Under New York’s divorce laws, one legal ground for a divorce is abandonment. This ground is available if one spouse has been away from the other spouse for at least one year. If one spouse is imprisoned and is expected to be away for at least 5 years, the couple would have a ground for divorce. If a couple voluntarily separates and they do not cohabitate, they would have met one of the requirements for a legal separation and for divorce. Thus, being physically present is so important for a marriage that being physically absent from each other is a ground for divorce or separation.

Similarly, if a spouse is absent continuously for at least years five years, the other spouse would have grounds to petition the court to have the marriage dissolved. In order for the court to order a dissolution, the petitioner must allege not only that the spouse has been absent for at least 5 years, but also that the spouse does not know where the absent spouse has been living and that there is good reason to believe that the absent spouse is deceased.,

To maintain a special proceeding to dissolve a marriage on grounds of absence under NY Dom Rel Law § 220, the petitioner must be resident of New York State and have been such a resident for a minimum of one year prior to initiating the special proceeding. Or, the matrimonial domicile must have been in New York State at the time that the spouse disappeared.

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. Procedure: New York Domestic Relations Law, section 221
Domestic Relations Law, section 220: Special proceeding to dissolve marriage on the ground of absence

A special proceeding to dissolve a marriage on the ground of absence may be maintained in either of the following cases:

1. Where the petitioner is a resident of this state and has been a resident thereof for one year immediately preceding the commencement of the special proceeding.

2. Where the matrimonial domicile at the time of the disappearance of the absent spouse was within the state.

Contact the Law Offices of Stephen Bilkis & Associates

If you are considering petitioning the court to dissolve your marriage because your spouse has been absent, it is important to contact an experienced New York divorce lawyer for specific information about the process. There are procedural requirements and technicalities that you must follow that are important to ensure that your reach your goals. The attorneys at the Law Offices of Stephen Bilkis & Associates have the experience and skill to guide you through this difficult time. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Queens, Bronx, Brooklyn, Long Island, Manhattan, Staten Island, Westchester County, Suffolk County, and Nassau County.

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