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.
New York law requires that a spouse must be served divorce documents to give them an opportunity to respond. Unfortunately, when you don’t know where that person is, it’s difficult to serve them with divorce documents. That is where service by publication comes into play. Manhattan divorce lawyer Juan Luciano is here to discuss What is Publication Divorce in New York.
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 serve it to your spouse through the New York Law Journal. The notice will run once per week and lasts for three weeks. You must get a signed statement from the clerk of the newspaper if your spouse does not respond within this time frame. The newspaper clerk will certify that your summons was published. After the statement has been notarized, you will be able to proceed with your divorce proceedings.
A publication divorce can be costly and time-consuming. This is why it is important to seek the help of an experienced divorce lawyer in New York. You can rely on an attorney who has experience in family law to help you navigate the complexities of a publication divorce.
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.
|Divorce by Publication Process||Duration||Details|
|Obtain Order of Publication||Varies||Duration depends on court availability and requirements. Provide a comprehensive list of search efforts.|
|Publish legal notice in newspaper||30 days||Must be done within 30 days after judge’s approval.|
|Frequency of notice publications||Once per week||Notice is published once per week.|
|Waiting period for spouse’s response||30 days||Spouse has 30 days to respond after last notice’s publication.|
|Filing for divorce by default||30 days||If no response within 30 days after last notice’s publication, proceed with filing for divorce by default.|
|Finalization of divorce||Approximately one year||Entire process usually takes about one year, including obtaining the Order of Publication, notice publication, waiting for response, and filing for divorce by default. Duration can vary.|
Getting Legal Assistance
Navigating divorce is never easy, especially if your spouse cannot be located. At the law offices of Juan Luciano Divorce Lawyer, we will 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 contact page to schedule a consultation.