Is he married or not?

Hi, Mrs Huntington-Walker:

My friend is a Jamaican. His wife went to the United States three years ago to live in Orlando, Florida. She has not communicated with him.

Whenever he calls her number, she does not answer. She told him to go get a life because she has moved on. It is alleged she has divorced him and has remarried. He, however, was never been served with any divorce papers. What can he do?

I crave your urgent response.

DH

Dear DH:

It is possible your friend's wife divorced him without his knowledge. There is a legal process available for persons to divorce their spouses if the person filing for divorce does not know where to locate their spouse. The process is known as 'divorce by publication'.

If a person is in the US and their spouse remains in Jamaica and they wish to divorce them, the petitioner in the US must file the petition for divorce in the county in which they live. Each US state has different laws governing divorce. In the state of Florida, a person has to be a resident of the state of Florida for at least six months before they can file for divorce. Once the divorce is filed, the respondent (opposing party) must be served the divorce papers along with a summons. The service must be done by a county sheriff or a licensed process server. Once the summons is received, the respondent has 20 days within which to respond to the divorce, or a default judgment will be entered against them. A default judgment gives the petitioner everything they have asked for in the divorce.

If the opposing party to the divorce lives in another state or in Jamaica, and the petitioner knows their address, a process server in Jamaica has to be engaged to serve the divorce papers on the opposing party. The person served can choose to answer the lawsuit themselves or to seek the services of a lawyer in the US who practises in the state in which the divorce was filed. Similarly, if the person in Jamaica does not answer the divorce lawsuit, a default judgment will be entered against them in the filing court.

On the other hand, if a party in the US has lost contact with their spouse in Jamaica they can use the divorce by publication method. This requires the petitioning party to post an advertisement of the divorce in a newspaper and to file sworn statements of what they have done to try to locate their missing spouse. Additionally, in these days of Internet access, a search for the missing person should also include the Internet. Proof of what the petitioner has done to search for their missing spouse should be included in the divorce filing, for the review of the presiding judge.

Fraudulent divorces

Unfortunately, many persons living in the US whose spouses are overseas, have fraudulently used the divorce by publication method to divorce their Jamaican spouses without the spouses' knowledge. The situation becomes complicated if the Jamaican spouse discovers this fraud and petitions the US courts for redress. If there is no property or children involved, it is usually not worth trying to set aside the divorce. However, if property and children are involved, the aggrieved spouse ought to seek the services of an attorney who practises in the US.

These situations usually arise when one spouse goes to the US and realises that the only way they can legally remain there is to marry a citizen. They divorce their Jamaican spouse by publication, remarry and move on with their lives. In other instances, the Jamaican marriage has just broken down and the party in the US wants to move on, and engages in the divorce by publication.

Your friend can attempt to find out if his wife divorced him by contacting the clerk of the court in the county where his wife resides, or hire an attorney in the US to search for that information for him.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises in Florida in the areas of immigration, family and corporate law. She is a mediator, arbitrator and special magistrate in Broward County, Florida. Email info@walkerhuntington.com or editor@gleanerjm.com.