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How to Divorce If A Spouse Cannot Be Located
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Can I Get a Divorce If I Can’t Find My Spouse?
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?” The issue of how to divorce if a spouse cannot be located occurs quite frequently in New York divorce.
Serving Divorce Papers
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.
Locating a Spouse for Divorce
Of course though, there are many times when a spouse simply cannot be located. Process servers or private investigators have numerous tools at their disposal to aid in locating a missing spouse.
- Professional skip tracing begins with basic public record searches. Investigators can examine property records, voter registrations, and business filings to establish possible locations. Credit header information, while not providing detailed financial data, can reveal recent addresses associated with credit applications.
- Social media analysis often proves invaluable in modern investigations. A trained investigator can identify patterns in public posts, check-ins, and social connections that may indicate someone’s whereabouts. Professional investigators also have access to specialized databases that aggregate public information, allowing them to cross-reference multiple data points efficiently.
- Vehicle registrations and driving records can be particularly useful when properly accessed through legal channels. If the subject has relocated to a new state, these records may provide crucial leads. Additionally, investigators can conduct discrete interviews with known associates or former neighbors who may have relevant information about the subject’s current location.
Substituted Service in a Divorce in New York When Spouse Cannot be Found
If the Defendant still cannot be located after a diligent search, the Plaintiff can make a motion requesting “substituted service” or “alternate service” including service by publication. This can be a complicated motion requiring numerous exhibits and affidavits in support. This motion will usually include:
- An affidavit detailing all attempts to locate your spouse
- Documentation of your search efforts
- An explanation of why other service methods aren’t feasible
- A proposed order for alternative service
- If using service by publication, a suggestion for which newspapers should publish the notice
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. 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. 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.
What is Service by Publication in a New York Divorce?
Service by publication (sometimes referred to as divorce by publication) in a New York divorce is a legal process used to serve divorce papers on a spouse when traditional methods of personal service have proven unsuccessful. It is typically employed when the whereabouts of the spouse are unknown, or the spouse is deliberately evading service. Service by publication involves publishing a notice of the divorce action in a newspaper or other authorized publication as a way to notify the spouse of the pending divorce.
Service by Social Media in Divorce
In recent years, New York courts have increasingly recognized social media as a valid method of service when traditional methods fail. This approach, known as service by social media or “Facebook service,” has gained traction as courts adapt to modern communication methods.
Requirements for Social Media Service
To obtain permission for service via social media, you must demonstrate to the court:
- Evidence that the social media account belongs to your spouse.
- Proof that the account is active and regularly maintained.
- Documentation showing that your spouse communicates through this platform.
- Verification that traditional service methods have been exhausted or would be futile.
Divorce on Default in New York
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. Depending on the facts and circumstances of the case, the Court may grant the divorce on papers, without necessity of any in-court appearances, or the Court may order the case to proceed by way of a simplified trial known as an inquest.
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What is an Inquest in a New York Divorce?
In the context of a New York divorce, an inquest is a legal proceeding that occurs when one spouse requests the court to determine certain aspects of the divorce case, such as issues related to spousal support, child support, or the division of marital property, when the other spouse fails to appear or participate in the proceedings. An inquest is typically held to gather evidence and information, make findings, and issue a court order or judgment based on the available evidence.
If you cannot locate your spouse, call the Law Office of Louis L. Sternberg, Esq. to discuss your case. We have extensive experience with locating absent spouses and, when unable to do so, proceeding by way of substitute service. Call us today for your free consultation to discuss your substituted service divorce in Suffolk County, New York.