Memorandum
Issue
What would be the most expedient
way for our client Mrs. Sheelagh to dissolve her marriage from her husband,
which she has not seen for nearly three years and she presumes him dead?
Short
Answer
After doing an extensive exploration
on what would be the most expedient way our client could dissolve her marriage
with the least amount of time and resistance, would be getting a divorce based
off of desertion. A diligent search would have to be done to locate her missing
husband, showing a good faith effort. This road would be the less problematic
for our client.
Statement of Facts
Mrs. Sheelagh is married and
her husband has vanished for nearly three years. She last saw her husband in
April 2009, when he left on a work assignment. Her husband was working for
Blackwater Worldwide, a private company which mainly does work for the C.I.A.
Mrs. Sheelagh’s husband told her right before he left that he was going to
Central America on a secret mission which he could not discuss with her, but he
had described it as a “cloak and dagger” mission. He also stated that there was
a possibility he might not return.
Mrs. Sheelagh has not seen
her husband or had any messages from him or anyone on his behalf since he left
in April 2009. She has tried to contact his employer, Blackwater Worldwide, but
they will not communicate with her, claiming “national security.” Mrs. Sheelagh
strongly believes that her husband is dead, but does not have any proof.
Mrs. Sheelagh has gotten on
with her life and has been living with her boyfriend. She does not feel
comfortable with the situation and would like to see their relationship evolve
to marriage. Hence, she would like detach herself from her husband as quickly
as possible to re-marry.
Analysis
My first research centered
on finding cases in the State of Alaska which referenced divorcing one’s spouse,
in addition to not living in the same state. In the opinion that was written
on, Vanvelzor v. Vanvelzor, 219 P.3d 184 (Alaska 2009), the husband sought
a divorce from his wife, who did not live in Alaska. He moved here for
employment and his intent was to remain. On page 191, number 3, Westlaw stated
“Although the superior court did not have personal jurisdiction over Jessica,
it had jurisdiction to grant annulment or divorce.” On the same opinion page,
they held that Alaska courts have jurisdiction over the cessation of a marriage
if one of the petitioners is in the State of Alaska and intends to stay, even
if the court does not have personal jurisdiction over the other party.
In the case of Crews v.Crews,
769 P.2d 433 (Alaska 1989), the wife left the husband and moved to Alaska. Her
husband never lived in Alaska. Alaska court did not have personal jurisdiction
over her personal claims against her husband, such as property division and
child support. The case cited an Alaska Statute AS 25.24.080, which is the
residence requirement for a plaintiff in an action to declare the marriage void
in the state of Alaska.
Under the AS 25.24.050 (4),
a divorce may be granted for any of the following grounds: willful desertion of
a period of one year, this is the one that our client’s case would fall under. The definition of willful is deliberate,
voluntary, and intentional and by what our client has told us, her husband
meets this definition.
Under Alaska Civil Rule 4
(e) other service is
used when diligent inquiry has been made to track down a person to serve them
with documents and the person cannot be found. Alaska Civil Rule 4 (e) (1) the party must make a good faith
effort in tracking down the missing person, via internet, known residences,
employment, etc. After this has been done, the party then writes out an
affidavit and submits it to the court.
I would believe that after
doing the research under Alaska State Law, Mrs. Sheelagh would be able obtain a
divorce based off the grounds of willful desertion.
There is another possibility
of looking at presumption of death under AS 13.06.035 (5):
an individual whose
death is not established under (1) - (4) of this section and who is absent for
a continuous period of five years, during which the individual has not been
heard from, and whose absence is not satisfactorily explained after diligent
search or inquiry, is presumed to be dead; the individual's death is presumed
to have occurred at the end of the period unless there is sufficient evidence
for determining that death occurred earlier.
Under another set of
statutes, they allow a district court judge or magistrate to make a finding
that permits declaration of death of a person who has vanished much shorter
period of time than the above presumption of death. AS 09.55.020 says that, “if
no one submits a petition within 40 days, a judge or magistrate may submit the
petition from personal knowledge of the case.”
The latter part of this
search could prove to be a possible remedy for Mrs. Sheelagh in the declaration
of death, which would take at least 40 days for the judge or magistrate just to
summit the petition for presumption of death, not including the diligent search
that would have to be done.
One more possibility to look
at, “The Enoch Arden Doctrine,” this provides a good faith belief in the death
of one’s spouse predicated upon his/her absence for a period of years, and will
shield the remarrying partner from criminal bigamy. In some jurisdictions in
addition to raising a shield to bigamy, after a certain number of years it will
give the subsequent marriage legal status. Another name is “Domestic Relations
Law 220 and 221,” this authorizes a spouse to commence a special proceeding to
dissolve a marriage when the other spouse has been missing for five or more
years, providing that the missing spouse is
presumed dead. The name “Enoch Arden” is named after the poem written by
Lord Alfred Tennyson. These are special proceedings and rarely used, although I
have found that the State of New York does cite the Enoch Arden in several
cases. One case was Lambert v. Lambert, 1 N.E. 2d 833 (N.Y.1936), this
case was where the lady married and she had not heard from her husband since
1913. It is now 1925, in which she has become acquainted with another person
and wants to marry. She uses the Enoch Arden Doctrine in order to get a
dissolution of marriage from her husband. She does marry said person on the
same day she gets dissolution of marriage signed by the courts. In this
particular case her current husband later uses the Enoch Arden Doctrine against
her on the grounds that the court lacked the jurisdiction to grant the order to
begin with. In another case, In re
Rogers’ Estate, 275 N.Y.S. 140 N.Y.Sur (1934), the wife procured adjudication
of the marriage in the Supreme Court, Queens County, dissolving the marriage
under the so-called Enoch Arden Law because of the absence of her husband, for a period of
five years. She wanted monies from his estate to support her lifestyle. Come to
find out her husband correspondingly procured dissolution of marriage based off
of the same grounds, in the Westchester County. These facts came to light in
court and the claim was disallowed.
I
believe this remedy for our client would be extremely problematic and possibly
cause issues down the line if the husband did re-surface.
Recommendations
After
the widespread research of several likelihoods of dissolving our clients
marriage, starting with divorce due to desertion, presumption of death, and then
finally the Enoch Arden decree. It is in my opinion to recommend divorce based
off of willful desertion. I believe this
would be the less problematic way to go, emotionally and financially. We would
in fact have to do a diligent search for her husband showing good faith, even
though we understand we will be meeting resistance from his employer. This of
course will take a moderate portion of time and we will need information from
our client in order to accelerate the situation.
