How to Divorce If A Spouse Cannot Be Located

November 13, 2014
Louis Sternberg
How to Divorce If I Can't Locate My Spouse

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.

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. Process servers often use skip tracing techniques to locate individuals who are difficult to find. Skip tracing involves searching various databases, public records, and other sources to gather information about a person’s current address or 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.

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.

What is Service by Publication in a New York Divorce?

Service 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.

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.

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.

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.