It takes two to tango, and it takes two to get married, but does it take two to get a divorce? Sometimes, after the marriage breaks down, one spouse, moves out of the house and disappears such that they cannot be found in order to be served.
When one spouse cannot be found, can the other obtain a divorce?
Divorces are lawsuits (even though most are resolved without a trial). Lawsuits can be filed without the knowledge or consent of a defendant. However, like other lawsuits, a divorce case cannot proceed until the defendant is served with a summons providing them with actual notice of the suit against them.
In the case of divorce in New York, the summons must be personally served. Normally, this accomplished by a process server or law enforcement officer personally handing a copy of the summons it to the defendant.
But when a defendant cannot be located, either because they are actively avoiding service or their whereabouts are unknown, New York law provides for alternative means of service. New York courts can authorize service by an alternative method when a party demonstrates, “after diligent inquiry” that personal service cannot be made.
In the past, I have been allowed to make service by publication-one of the “legal notices” commonly found in the classified section of a local newspaper that, I suspect, no one ever reads. I have also been allowed to make service by email to a party who moved overseas, communicated with me and my client via email, but refused to reveal where he was actually living.
When personal service is impracticable by any of the means set forth in the statute, a judge can authorize service “in such manner as the court directs.” This gives a judge broad authority to permit service in any number of creative ways. This includes service via social media. It is important to remember that an alternate method of service must be approved before it is made in order for it to constitute valid service. Your inability to locate your soon-to-be former spouse will not ultimately prevent you from obtaining a divorce no matter how far off the grid your spouse is .
Daniel Clement: Trusted New York and New Jersey Divorce Counsel
New York and New Jersey divorce attorney Daniel Clement has been guiding clients through divorce and family disputes for over 30 years.
He understands your concerns and fears. He wants to help you to overcome the uncertainty and to empower you to make informed decisions that achieve your desired goals.
If you are considering divorce, please download the free e-book The Divorce Process: What to Expect to learn more about the process.
We also welcome you to contact us or call (212) 683-9551 to arrange for a consultation. We look forward to assisting you.
