What happens if you want a divorce from your spouse, but he or she can’t be found? While this isn’t common, it happens more frequently than you would imagine. In New York, when a spouse is missing and all reasonable efforts to locate them have failed, the law allows for what is known as a “publication divorce.” This process involves obtaining permission from the court to serve divorce papers by publishing a notice in a newspaper, rather than serving them directly to the missing spouse. This allows legal divorce proceedings to continue even in the absence of one party, thereby providing a resolution for individuals facing such challenging circumstances.
If you are considering divorce and find yourself facing the challenge of an absent spouse, the team at Juan Luciano Divorce Lawyer is here to help. Our experienced Manhattan divorce lawyers can handle all aspects of publication divorce, helping you meet the legal requirements. We can provide personalized guidance to safeguard your interests and achieve a resolution that allows you to start anew. Contact us today at (212) 537-5859 to discuss how we can assist you through this unique and sensitive legal process.
How to Divorce Someone You Haven’t Seen in Years?
Divorcing a spouse you haven’t seen in years can be complex, but it is entirely achievable with the right steps. The first thing you need to do is attempt to locate your spouse. Start by checking their last known address, contacting their previous employer, or reaching out to mutual friends and family. If these don’t provide any leads, you might want to search online public records or consider hiring a private investigator to help in your search.
It’s essential to document every attempt you make to locate your spouse. Keeping a detailed record of these efforts is crucial as it demonstrates your commitment to finding them and establishes that you have made a good faith effort in this regard. This documentation becomes particularly important if you need to pursue alternative methods of finalizing your divorce.
If, even after a diligent search, your spouse is still unlocatable, you can proceed with what is known as a ‘divorce by publication.’ This method involves publishing a notice of the divorce in a newspaper or similar publication in the last known location of your spouse. The requirements for this process can vary, so it is wise to consult with a legal professional.
Given the challenges involved in this type of divorce, consulting with a Manhattan divorce lawyer is highly recommended. Juan Luciano can provide guidance tailored to your specific situation, increasing the likelihood of a favorable outcome. Following these steps and seeking appropriate legal counsel allows you to effectively initiate and complete a divorce, even if your spouse is not present or cannot be located.
Manhattan Divorce Lawyer
Juan Luciano
Juan Luciano is a respected Manhattan divorce and family law attorney who combines empathy, negotiation skills, and courtroom experience to assist clients with emotionally charged legal matters. Focusing on collaboration and practical solutions, Mr. Luciano works to resolve disputes amicably while remaining prepared for strategic litigation when necessary. His goal is to help clients move forward with dignity and confidence.
- Over 15 years of experience in divorce, custody, and family law litigation
- J.D., State University of New York Buffalo School of Law (2004)
- Certified by the Appellate Division First Department to represent adults and children
- Former President, Bronx Family Court Bar Association
- Served on advisory panels and as faculty member at the Practicing Law Institute
- Featured in the New York Law Journal and Wall Street Journal
- Fluent in Spanish; offices in Midtown Manhattan and the Bronx
What is Service By Publication?
Service is the official delivery of a summons notifying the other spouse in a divorce. In most cases, this is delivered to that party in person. But when someone is not locatable, the court can agree to this service by other means than in person. In this case, the summons can be published in a local newspaper.
The original intention of service by publication was that a defendant in a divorce would either read the notice or someone they knew would read it and notify them. But we know that few people read the public notifications section of a newspaper. Still, this is the law and it remains the only way that a person seeking a divorce can serve their spouse by publication.
Searching For Your Spouse
Although it may sound simple, a publication divorce has to follow specific rules and guidelines under the law.
Service by publication is a two-step process. The first step is filing the summons with the court, thereby beginning a 120-day waiting period. During that time, you will make a diligent search for the other spouse. This will be done through various means, including
- Sending paperwork by certified mail to the spouse’s last known address
- Contacting the spouse’s last known place of employment
- Contacting the spouse’s family members
- Checking local hospitals and homeless shelters
- Searching the Department of Motor Vehicles
- Searching phone or internet directories
- Searching social media
- Searching the U.S. military locator website
- Searching through the Board of Elections
- Searching New York criminal court records and the Federal Bureau of Prisons website
- Searching the Social Security Death Index website
If you are unsuccessful, an affidavit is then prepared detailing these efforts, and you will ask permission from the court to serve by publication.
Serving by Publication
If the court agrees that you have made a sufficient attempt to find your spouse, a judge will grant your request to serve by publication.
The court will designate what publication you will be required to use, and you will need to get an affidavit of service from the publication stating that the summons was published. Your service is considered completed after the twenty-first day after the first date of publication.
A Method of Last Resort
Once the service requirement is met, you can then go forward and request that the court grant your divorce. But a divorce by publication can be cost-prohibitive and time-consuming, often requiring the assistance of private investigators and extra court costs. Unless there is no other option, these types of divorces should be used only as a last resort. There may be other ways to find your spouse before going through this official procedure. We can help.
Serving the Order of Publication
If you are unable to track your spouse down through agencies, you may be able to file an affidavit that states your inability to find them. After you have completed this, your affidavit will be submitted to the New York Supreme Court’s Ex Parte Office along with your divorce summons and the results from your search. These documents will be reviewed by a judge, who will make your Order of Publication.
After the judge approves and signs the Order of Publication, you may publish the summons in the designated newspaper, often the New York Law Journal. The notice is published once per week for three consecutive weeks. You must obtain an affidavit of publication from the newspaper confirming that the summons was published. Once the affidavit is notarized, service is considered complete, and you can proceed with your divorce proceedings if your spouse does not respond.
A publication divorce can be costly and time-consuming. This is why it is important to seek the help of a divorce lawyer in New York. An attorney with experience in family law can guide you through the process of a publication divorce and help you address any challenges that may arise.
How Long Does Divorce by Publication Take?
If your search for your spouse proves unsuccessful, you have the option to seek an Order of Publication through your attorney. To obtain this order, you must provide the court with a comprehensive list of the efforts made to locate your missing spouse, demonstrating a diligent effort on your part. Once a judge signs the Order of Publication, your attorney will be responsible for publishing a legal notice in a newspaper. This notice serves as the equivalent of “serving notice” with a “summons” in legal terms, informing your spouse of the divorce action you are pursuing.
There are specific guidelines associated with the Order of Publication. The legal notice must be published in the designated newspaper within 30 days after the judge’s approval. The order will specify the newspaper, typically one published in the area where the missing spouse was last known to reside, and the frequency of the notice. Typically, the notice must appear three times, once per week for three consecutive weeks.
If the missing spouse fails to respond within 30 days after the last notice’s publication, your attorney can proceed to file the divorce “by default.” This signifies that despite your thorough search efforts and the adequate legal notice in the newspaper, your spouse has not responded to your intention to pursue a divorce. Their lack of response is considered a “default,” allowing you to file the divorce with the court. After the approval of your documents, your divorce will be granted. It’s important to note that a divorce by publication usually takes approximately one year to complete, from initiation to finalization.
| Stage / Requirement | What Must Be Done | Typical Timeframe / Deadline |
|---|---|---|
| Court grants Order of Publication | Judge reviews your affidavit of diligent search and signs the order allowing you to publish notice. | Varies depending on court schedule. |
| Publication in newspaper | Publish notice once per week for three consecutive weeks in a newspaper designated by the court. | Within 30 days after the order is granted. |
| Response period for missing spouse | Wait for the missing spouse to respond after the last notice. | 30 days from the date of the final publication. |
| Default judgment and filing for divorce | If no response, file for divorce by default and seek court approval. | After the 30-day waiting period. |
| Total process duration | From initiating search to final divorce decree. | Approximately one year. |
Limitations of Default Judgments in Publication Divorce
When a spouse cannot be located and service is completed through publication, the court allows the divorce process to move forward after the required waiting period. If the missing spouse does not respond or appear in court, the filing spouse can request a default judgment. This means the court may grant the divorce even without the other party’s participation.
However, there are important limits to what the court can decide in a publication divorce. While the court can legally end the marriage and restore each spouse’s single status, it cannot always rule on financial or property matters without the absent spouse’s involvement. For example, issues such as the division of marital property, spousal support, or child support generally require personal jurisdiction over both parties. If the missing spouse has not been personally served and does not appear, the court’s authority to make these financial determinations is often restricted.
This limitation means that although the divorce can be finalized, certain matters may remain unresolved until the other spouse can be located or later brought before the court. The outcome provides legal closure and allows the filing spouse to move forward independently, but it may not fully address financial rights or property claims tied to the marriage.
Getting Legal Assistance at Juan Luciano Divorce Lawyer
Divorce is never easy, especially if your spouse cannot be located. At Juan Luciano Divorce Lawyer, Manhattan divorce lawyer Juan Luciano can advise you of your options under the law and assist you in making the best decisions possible for your circumstances. Call us at (212) 537-5859 or contact us through our website’s contact page to schedule a consultation.
