A few months back we started a new series for legal thriller lovers! Each month we discuss a new book and talk about a legal issue or crime that was presented in the book. This month’s selection is The Last Best Hope by Ed McBain.
Divorcing a Missing Spouse
Ed McBain’s Last Best Hope, is one of my favorite gritty vintage reads.
In Last Best Hope, Jill Lawton comes to Matthew Hope, a criminal attorney, in order to get a divorce. The problem is that her husband, Jack Lawton, is nowhere to be found. A body washes up with the face obscured and Lawton’s driver’s license in its pocket, but it turns out not to be Jill’s missing husband. Hope teams up with another of Ed McBain’s iconic characters, Detective Steve Carella, to ID the dead body and discover a dark underworld of theft, lies, murder and kinkiness. It’s a speed read to the end.
Most divorces are not nearly this thrilling, although they may seem this dramatic. The legal question does come to mind: How does one get a divorce when their spouse is missing?
In Texas, as in most states, one can’t be forced to stay married just because their spouse is either missing, dead (but not verified), or doesn’t want to be found. A method is utilized called Divorce by Publication or Service by Publication after the petitioner has used “diligent” methods to give “reasonably effective notice” of a divorce proceeding. In Texas, divorce by publication is described in Texas Rules of Civil Procedure, 99, 106 (a)(1), (a)(2), 106 (b), 109.
The petitioner must sign an affidavit swearing that he/she has jumped through all the hoops to find the missing spouse. The petitioner attaches the affidavit to, and files with the court, an Affidavit for Citation by Publication and Diligent Search along with a certificate of last known address of the missing party (and certify that the missing spouse is not in the military service).
Finally, the petitioner files a Statement of Evidence which argues his or her case and requests that the community property and debts of the marriage be divided as set forth in the Divorce Decree.
After the notice is published in the newspaper, an agent of the paper completes and submits a Return of Citation authenticating the notice. (This sounds complicated, but most newspapers do this regularly and have forms for this purpose.)
The missing spouse is deemed served, the petitioner waits thirty days, and the divorce proceeds in accordance with the usual standards for a default divorce. The whole process takes about three months.
It doesn’t really stop there, however because the respondent has up to two years to ask for a new trial if they find out they were divorced while missing. To hang it all, the petitioner must pay for the cost of the respondent’s attorney if this happens.
For those of you who haven’t read McBain’s books, he wrote more than eighty novels, including the influential "87th Precinct" series, the longest-running series of crime novels in history. His books have sold more than 100 million copies. In 1986, he was named a Grand Master by the Mystery Writers of America, the organization's highest honor, and in 1998 he became the first American to receive the British Crime Writers' Association's highest award, the Cartier Diamond Dagger. He died in 2005.