It can be difficult to divorce a missing spouse, especially in cases of abandonment, but it is not impossible. In situations such as this, a plaintiff is able to petition the courts for a Divorce by Publication. However, proceeding with this process is incredibly time consuming and expensive, and should only be attempted after all other outlets have been exhausted.
Divorce by Publication
New York State requires all parties of a court action to be notified of the pending lawsuit. This requirement extends to matrimonial matters. In a divorce case, a plaintiff will file and serve upon their spouse (the defendant) a Summons with Notice or Complaint. The summons must be personally served, which means a neutral party has to physically hand the document to the defendant.
This can pose a problem if a plaintiff is unable to locate their spouse. Service by Publication is the only option for plaintiffs who find themselves in this situation. Once a diligent search has been performed, and all evidence of said search is presented to the court with an Affidavit, a judge can allow a plaintiff to proceed with a divorce by publication.
Utilizing Social Media to Search
With the exception of domestic violence cases, it is always recommended that a plaintiff try to locate their estranged spouse without using the help of an attorney or private investigator. Searching online, especially on Facebook, Twitter, or LinkedIn, is usually a very fruitful endeavor. It is also possible to ask a relative or friend of your spouse if they have a current address or contact information. You are not required to tell anyone why you want to contact your spouse, so do not feel pressured to do so.
Professional and Diligent Searches
The first step to obtaining a Divorce by Publication is to perform a diligent search for your spouse. If a party cannot be located with a self-search, then a plaintiff has to retain the services of a professional private investigator. The private investigator must make a diligent effort to locate the defendant by obtaining search reports from the following agencies and resources:
- U.S. Military (all branches);
- New York City Board of Elections and telephone directories (or whichever county the action takes place in);
- New York State DMV;
- Unites States Postal Service;
- A thorough internet search; and
- A visit to the defendant’s last known place of residence.
Submitting Reports to Court
After the private investigator has exhausted all available resources, your attorney must submit the search reports and findings to the court. These documents will be attached as exhibits (evidence) to an Affidavit of Plaintiff. A judge will use this affidavit, along with the included exhibits, to determine whether or not a diligent search has been made to locate the defendant. The courts also require that a plaintiff provides a sample Summons with Notice, as it will appear in a print publication, as well as the original divorce papers filed with the Clerk’s office at the start of your action.
Publishing Notices in Newspapers
Notices of divorce must be printed in a popular newspaper or other publication, which is readily available and distributed in the last known city or county of residence for the defendant. New York State also allows residents to publish these notices in The New York Law Journal. A newspaper requires a plaintiff provide them with the title of the action and both parties fill names, the Order to Serve by Publication, and the Summons with Notice.
New York law requires notices to be published once a week, for three consecutive weeks, in order for service by publication to be complete. The reasoning behind this is that a defendant will have three chances to see the Notice, and respond accordingly. Once the three weeks have been completed, an employee at the newspaper must sign a notarized statement confirming that the Notice has been published correctly. This statement will be filed in the County Clerk’s office, along with all final divorce paperwork.
Divorce by Publication Pitfalls
Divorce by Publication is expensive and time consuming. Plaintiffs must pay for a private investigator, agency fees associated with the search for their estranged spouse, court filing fees, and publishing fees for a newspaper. New York City courts are backlogged with matrimonial cases, and the extra work and time put into a Divorce by Publication matter will only prolong the process. An experienced divorce attorney is best suited to handle an intricate and technical such as this, and trying to proceed without proper representation will backfire.
Representation You Can Trust
The knowledgeable attorneys at Brian D. Perskin & Associates P.C. generally discourage Divorce by Publication unless there is absolutely no other option and all other avenues have been exhausted. It is always recommended that a plaintiff try to locate their spouse without on their own before proceeding with a divorce action. For more information on New York divorce, contact Brian and his team to schedule a free consultation today!