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When a Spouse Cannot Be Found in New York
When one spouse wants to call it quits but cannot find his or her missing partner, or when he or she is hiding, divorce by publication comes into play. Divorce by publication happens "only after a judge has been convinced, based on a sworn declaration, of the serving party's inability to find the Defendant after trying hard. Service by publication is commonly used in a divorce action to serve a spouse who has disappeared without a leaving a forwarding address..."
When the Respondent cannot or will not be found (and, therefore, cannot be given the Summons and Complaint), Petitioner must pursue alternative service and sometimes what is termed a "diligent search" followed by Service by Publication.
If the Petitioner knows where the spouse works or lives, "but cannot find him to serve and cannot find a person of suitable age and discretion at either location," the Summons can be affixed to the door of the absent partner's residence. At the same time, a copy must be mailed by first class mail. This is called "nail and mail." Both copies must be marked "personal and confidential," and both types of service must happen within 20 days of each other, and the Affidavit of Service, by which the Petitioner affirms that the papers were sent, must be filed within 20 days of whichever type happens last.
New York's Search Requirements and Process
Nail and mail may be done only after the Petitioner has made a diligent search, which is also a preliminary to Service by Publication, because New York courts require a good faith effort by the Petitioner to prove that he or she has made a genuine search for his or her missing partner. Due diligence may include:
In order to be eligible for a "Divorce by Publication", you must complete and submit an Affidavit of Diligent Search to the court. This document clearly outlines all of the actions you have taken to locate your spouse, essentially proving to the court that your spouse absolutely can't be found.
If you actively pursue locating your spouse through the methods outlined in the Affidavit of Diligent Search, and still can't locate your spouse, then a "Divorce by Publication" is your likely method of getting a divorce.
Filing for Divorce by Publication in New York
If the search is fruitless, the Petitioner files a Notice of Motion for Alternative Service, which requests the court approve either nail and mail or service by publication, and a Request for Judicial Intervention, which is an ex parte application for dissolution of marriage. At the same time, the Petitioner must prepare an Order Directing Service, which permits service by publication.
In Service by Publication, the Petitioner publishes the Summons with Notice or the Summons and Verified Compliant in the English language in a newspaper that is most likely to be seen by the missing spouse.
The publication must be once a week for three weeks, and Summons and Notice of Publication must also be mailed to the missing spouse on or before the first day of publication unless "with due diligence" the address cannot be determined.
The first publication must be within 30 days of court approval, and an Affidavit of Service, which affirms that the publication happened, must be filed within 20 days of the last publication. The spouse must be served within 120 days of the filing of the divorce action. The missing spouse has 30 days from the service by publication to respond.
If the missing spouse fails to respond, the court considers the action uncontested. The Plaintiff can schedule a hearing to finalize the action.
New York Service by Publication is described in New York Civil Practice Law and Rule § 315, 316.
Copyright Notice: These New York divorce laws above are copyrighted by Divorce Source, Inc. This abbreviated and revised version of the state laws has been compiled from applicable state laws and unauthorized reproduction in any fashion is prohibited. Violation of this copyright notice may result in immediate legal action.