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When a Spouse Cannot Be Found in North Carolina
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... "
In North Carolina, the courts will permit service by publication only as a last effort, for example, "when the Sheriff has made several attempts to personally serve [the missing partner], but it appears that [he or she] is hiding to avoid being served."
When the Respondent cannot or will not be found (and, therefore, fails to respond to the Summons), the Petitioner must conduct what is termed a "diligent search" followed by Service by Publication.
North Carolina's Search Requirements and Process
North Carolina 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. This search entails:
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 North Carolina
If the search is fruitless, the Petitioner files a Notice of Service by Publication, a statement which gives the missing spouse notice that he or she has 40 days from the date of first publication or the date that the complaint was filed, (whichever is later) to respond the action.
The Petitioner also prepares an Affidavit of Publication, which is completed by a responsible agent of the publication. This notarized affidavit affirms that the Notice of Service by Publication appeared. It is attached to the Affidavit of Service by Publication, a notarized statement that affirms that 1) "A copy of the notice of service of process was mailed to the party to be served at the last known post office address..."; 2) "The post office address of the person to be served is not known and cannot be ascertained with reasonable diligence." It also explains why the party cannot be served by "personal delivery or registered or certified mail."
The legal notice of the action appears once a week for three weeks. The publication is often in the county where the action is filed.
If the missing spouse fails to respond within the time limits of the Notice of Service by Publication, the court considers the action uncontested. The Plaintiff can move on to complete the action.
From start to finish, Service by Publication takes about two to three months.
North Carolina Service by Publication is described in North Caroline Rules of Civil Procedure.
Copyright Notice: These North Carolina 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.