Dissolving the Marriage with a Missing Spouse:
Enoch Arden Divorces
by J. Douglas Barics
Domestic Relations Law 220 and 221 authorizes a spouse to commence a special proceeding to dissolve a marriage when the other spouse has been missing for five or more years, provided that the missing spouse is presumed dead. Known as an "Enoch Arden" divorce, named after the poem of the same name by Lord Alfred Tennyson, this special proceeding is rarely used today. Historically, it was enacted in the early 20th century when the only ground for divorce was adultery. Today, it is far more prudent to commence a divorce action using substituted service, which would address the status of the marriage and all ancillary issues as well.
In contrast to other matrimonial actions, this action is a special proceeding, and as such, is commenced by the filing of a verified petition. DRL 220 allows this proceeding to be brought in New York if the petitioner has lived in New York for one year prior to the commencement of the proceeding, or if the absent spouse resided in New York at the time of his or her disappearance.
DRL 221 provides the elements of the petition, which are as follows
- The spouse has been absent for five or more years
- The petitioner believes the missing spouse is dead
- That a diligent search was made to show the spouse is alive
- That no such evidence has been found
If the court accepts the petition, the next step is to serve it by publication, giving at least 40 days notice of the hearing date.
On the hearing date, the petitioner will present his or her evidence to prove petition. The court will then determine if the petitioner presented sufficient proof to dissolve the marriage.
Following dissolution under DRL 220 and 221, the spouse is free to remarry. Should the missing spouse reappear, the new marriage remains valid. However, as this proceeding addresses only the status of the marriage, all remaining issues such as support and division of property are considered unresolved, and could be subject to later litigation should the missing spouse return.
The article "Dissolving the Marriage with a Missing Spouse Enoch Arden Divorces" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.
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J. Douglas Barics, Esq. – Divorce, family, matrimonial, trial and appeals lawyer in Long Island, New York.