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Ask An Attorney

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My husband left me without one word-just packed up and left. I did not hear from him for six weeks. I finally did hear from him and found out he not only moved to another state, but that he did not plan to ever contact me again. He dropped my name off our credit card, discontinued my phone, and closed our bank accounts. It was a very hard time for me. It has now been two years since he left. I currently live in North Dakota and I assume he still lives in another state. I feel it is time to move on and get this marriage over with, as we are both in our late fifties. Does willful desertion apply? What are my rights? And how do I get divorced from someone when I don't even know where he is?

"First, this is a terribly unfortunate way to end a marriage, but she does absolutely have rights in this scenario."

She mentions willful desertion. Is that an actual legal concept that applies?

"Yes, willful desertion could apply. It is one of the grounds to request a divorce in North Dakota. Willful desertion is statutorily defined, and includes a number of different situations that constitute desertion. Examples include refusal to engage in marital relations, or when one party fraudulently induces the other party to leave the family dwelling, it is willful desertion by the party committing the fraud. And of course the statute includes the situation here when one party voluntarily leaves the family dwelling intending not to return. It is important to note that the statute also requires that the desertion continue at least one year in order to use that as a basis for requesting a divorce."

It seems she meets the requirements then.

"For requesting a divorce on the basis of willful desertion, yes. She will have to provide evidence to the court to show that it did occur. I do also want to point out that if reconciliation occurred at some point after the husband left, she could no longer ask for the divorce to be granted on that basis."

So in this case, if she doesn't know where he is, or how to reach him, how will she be able to get a divorce?

"To commence a divorce action in North Dakota you must first obtain personal service on the other party-in other words the party must be served with the summons. Obviously the other party has a right to know that an action is being brought against him."

That's the issue though since she does not seem to know where he is.

"Absolutely. In this scenario it's likely she would have to proceed by what's called service by publication."

What is service by publication?

"It is a form of service that is permitted in divorces if you are otherwise unable to locate a defendant. The court has said you need to make a diligent inquiry prior to service by publication; however, that doesn't mean you have to exhaust all conceivable means of personal service. But you do have to exert reasonable efforts under the circumstances that are required."

You basically need to try to find the husband?

"Yes. Reasonable efforts must be made, anyway. I would probably start out with a simple Internet search and see if current contact information could be located that way. Even Facebook is a good tool for this. If you can find out the area he is in, personal service is at least a possibility. If that fails, I'd ask her if she's contacted any of his family in an attempt to locate him. However, I'm guessing all of this has been done, and it's likely service by publication would be appropriate in these circumstances."

So what would need to be done first?

"First a complaint and affidavit must be filed in the county where the wife resides. The complaint must state the relief that the plaintiff is requesting, and the affidavit must state that the defendant was unable to be located after diligent inquiry. The summons, which is the document that initiates the action, must be published in the county where the plaintiff resides once a week for three consecutive weeks."

Is that all that would need to be done?

"No. After the summons is published that first week, the plaintiff must then send the summons and complaint to the defendant's last known address. After service is complete, and the appropriate documents are filed, the court will schedule a hearing on the matter."

What happens at the hearing?

"The court will hear all the evidence on the matter and decide, if the husband doesn't show up, if default judgment is appropriate and what is an equitable division of the marital estate. And in this case, it's likely that the court would simply award the wife what she currently has in her possession, and anything she acquired since he left."

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