A very common question from potential clients is “How can I get a divorce if I don’t know where my husband or wife is?”
New York Domestic Relations Law § 232 states that, in a divorce action, the Defendant must be personally served with the Summons With Notice or Summons and Complaint, unless the court specifically directs some other method of service. “Personal service” requires someone to physically provide the papers to the Defendant personally. This personal service requirement causes problems for many people seeking to divorce but who cannot locate their husband or wife. How can you serve someone with divorce papers if you do not know how to find them?
The first step is hiring a process server or investigator to attempt to locate the Defendant. To the surprise of many clients, process servers and investigators often locate a spouse who has been missing for many years. Of course though, there are many times when a spouse simply cannot be located.
If the Defendant still cannot be located after a diligent search, the Plaintiff can make a motion requesting “substitute service” or “alternate service” including service by publication. This can be a complicated motion requiring numerous exhibits and affidavits in support.
When making such a motion, the Plaintiff can propose any method of “substitute service” and ultimately, the court will make the final determination as to which, if any method is acceptable. Common methods of substitute service include “nail and mail” service in which someone leaves the papers at the home of the Defendant and mails the papers to the Defendant; personal service on a friend or family member of the Defendant; service by electronic means such as email or facebook; and “service by publication” in which a legal notice is published in a newspaper. Service by publication is a traditional method of substitute service but it is falling out of favor by many because it is a time consuming and expensive process.
When determining a method of alternate service, the law requires that the court authorize the method most likely to provide the Defendant with “actual notice” of the pending divorce. This alternate service provides the Defendant with “constructive notice” of the divorce.
Upon completion of service (personal service or some alternate court-ordered method), the divorce can proceed. If the Defendant fails to appear, the court can rule the Defendant to be in default and grant the divorce without your husband or wife appearing.
