Some people want nothing more than to never see their spouse again - if only they could be found first.
Divorce in cases in which one spouse can't be located are challenging because one of the key points in any civil court case is serving notice to the other side of what is occurring, affording them due process and the opportunity to respond accordingly.
However, if you can't locate your spouse, you aren't expected to remain married to them indefinitely. Our Brooklyn divorce lawyers are familiar with a process called divorce by publication, which allows parties to obtain a valid divorce, even when one of the parties cannot be found. The process is also sometimes referred to as a "no signature divorce," because the other party is not available to provide a signature on the notice forms or other documents.
While a missing husband or wife would seem a cause of great alarm for some, for others, it may be a rather unsurprising continuation of a pattern, perhaps even a core reason for seeking a divorce in the first place. Others may involve spouses who have been separated and out of contact for years, but never officially sought a divorce.
Divorce by publication is only allowed in situations where a judge has been convinced, based on a sworn declaration, that the person initiating the divorce has tried diligently to find the other party to no avail.
In order to satisfy the judge's concerns that you have conducted a thorough search, you will likely require the guidance of an experienced divorce lawyer.
He or she will likely begin by searching the following places:
- Within the five branches of the U.S. Military.
- The Board of Elections where your spouse was last known to reside.
- The New York Department of Motor Vehicles.
- The Post Office in the region where your spouse was last known to reside.
- A search of telephone and Internet directories in the area your spouse was last known to reside.
- Any known living relatives or friends with whom your spouse may still be in contact.
All of these efforts must be carefully documented. If any of these searches turns up a lead, it must be followed through with an investigation. If a person is found with your spouse's same name, a full investigation must be conducted to confirm his or her identity before notice of divorce action is served.
If all of this turns up nothing, at that point, we can file a motion requesting the court allow for an Order of Publication. The request will list all search efforts and demonstrate to the judge that you made every reasonable effort to locate your spouse, and yet were unsuccessful.
If the judge grants and order of publication, that order must be published as a legal notice in a newspaper. The notice will clearly state you are seeking a divorce action against your spouse. This will effectively serve as legal "notice" and "summons."
In order to be valid, an Order of Publication has to be published in the newspaper within one month of the judge signing off on it. The order will specify which publication the notice will appear, and will most usually be one in the jurisdiction where your spouse was last known to live. Additionally, the order will specify how many times the notice has to appear, usually three times within a three-week period.
If there is no response from the spouse within a month of the the final notice, you are entitled to file for divorce by default. That means once your papers are approved by a judge, your divorce can be granted. While every case is different, the entire process for divorce by publication in New York usually takes about one year.
To learn more about how we can help, contact us today.
If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.
More Blog Entries:
Preparing Yourself Digitally for a New York Divorce, July 21, 2014, Brooklyn Divorce by Publication Lawyer Blog