Can I dissolve my marriage on the ground of spousal absence for 6 years?

Full question:

I am a resident of New York. I am married for 10 years. My husband went missing during a mountain expedition 6 years ago and I have not seen or heard of since then. All the searches thus far have been futile and I believe he is no more. Can I dissolve the marriage on the ground of spousal absence?

• Category: Divorce
• Subcategory: Grounds
• Date: 04/07/2025
• State: New York

Answer:

When a spouse is absent for five successive years without been known to be living and one of the spouse believes that such husband or wife to be dead; Also, on diligent search no evidence showing that the spouse  is alive is found then  an order shall be passed by the court to dissolve the marriage.

Per New York Consolidated Law Service §220:

“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.”
 

New York Consolidated Law Service §221 states the procedure for the dissolution of the marriage. It reads:

“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.”