A New York court will not grant a divorce unless there is jurisdiction over the parties. In addition to meeting state residency rules, the spouse who initiates the divorce must serve a summons on the other spouse. Service of process becomes more difficult if that other spouse cannot be found. However, there is sometimes a solution available: publishing the summons in a regional newspaper that the other spouse is likely to read.
Once you file for divorce, you have 120 days to serve the summons, usually by personal delivery. Using service by publication requires getting the court’s permission, which in turn depends upon showing you have diligently searched for your spouse without success. An experienced divorce attorney can advise you of the best methods to follow. They may include sending emails, searching social media, contacting your spouse’s relatives and friends, asking your spouse’s employer (if known) and checking public databases like the Department of Motor Vehicles. You can also send a letter by certified mail, return receipt requested, to your spouse’s last known address. Keep records of all of these attempts.
If all of these efforts are unsuccessful, your attorney can apply to a judge for an order permitting service by publication. The application must be supported by an affidavit from you stating all attempts you have made to find your spouse. The judge’s order will give instructions, specifying the newspaper where you will need to publish the summons and an accompanying notice. Your attorney will then contact the newspaper. The summons and notice must be published once a week for three consecutive weeks, starting on a date within 30 days of the judge’s order.
Service of the summons is considered complete on the 21st day after the first publication. To establish this, your attorney will obtain from the newspaper publisher an affidavit of service, which is a sworn statement giving the dates of publication. Your spouse has 30 days from the date of last publication to appear in court or to file a response to the summons. Once that time has passed, you can proceed with requesting what is known as a judgment by default.
You should keep in mind that divorce by publication is not favored by courts, since there is no proof that the defendant spouse ever received actual notice of the proceeding. Although the publication process can take just a few months, a divorce judgment by default can take as long as a year to finalize. Even after that, it is possible that your ex-spouse can go to court asking for the judgment to be set aside. Whenever possible, it is preferable to find your spouse so that physical service of process can be made.
Bombardo Law Office, P.C. in Syracuse represents Central New York spouses in divorce proceedings and all related matters. Please call 1-315-488-5544 or contact me online to schedule a meeting to discuss your legal options.
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