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Getting a Divorce From A Missing Spouse

by / 0 Comments / 83 View / August 25, 2007

I get a surprising number of telephone calls from people asking if they can get a divorce in New York, even if they cant find their spouse. The answer is “yes” but the process involves some extra steps.

Under the New York Domestic Relations Law §232, : “A judgment shall not be rendered in favor of the plaintiff upon the defendant’s default in appearing or pleading, unless either (1) the summons and a copy of the complaint were personally delivered to the defendant; or (2) the copy of the summons (a) personally delivered to the defendant, or (b) served on the defendant pursuant to an order directing the method of service of the summons in accordance with the provisions of section three hundred eight or three hundred fifteen of the civil practice law and rules, shall contain such notice.”

What this means in English is that divorce papers must be delivered into the hands of the defendant. It can’t be mailed; it can’t be left on the door step, or left with his mother. It must be placed in his hands.The problem arises when the spouse is blowing in the wind. In that instance, the plaintiff must make an application to the court to serve the defendant in some other manner. This is called a request for “substituted service.”

Basically, the court allows service in some other manner to be substituted for the service upon the defendant.

But, when the spouse can’t be found, nail and mail is not practical. The New York courts will allow divorce papers to served by other methods. Basically, the court will allow any form of service that is reasonably likely to provide notice to the spouse. For example, if the spouse has been deported back to this home country, it be impractical or impossible to serve him in his home country. But, if he has relatives in the United States, such as a sister, brother, aunt or uncle, the New York courts will allow service upon on of these relatives.

In one case, the husband voluntarily returned to his home country, but refused to tell his wife or adult children his address. All that was had was his post office post. The court allowed service by regular mail upon this post office box. In another case, the court was informed that all service members are issued military email and must regularly check that email. As a result the court allowed the service upon a soldier by email.

Finally, if there is no way to find the person, and no relatives to service, the court call allow service by publications. Basically, the court will allow the papers to be published in a local paper. Upon the printing of the papers, the court will find that service has been completed.

There was a recent decision published in the New York Law Journal, (July 31, 2007, page 27, column 3) where this issue was examined. Although not a divorce action, the father was seeking permission to serve the mother a motion for contempt for violating the visitation order. The problem was that she had moved and he didn’t know where she had gone. The court refused to grant the motion stating that the father did not make sufficient efforts to locate the mother. Specifically, he did not search the motor vehicle records, the voter registration records, the postal records, search of hospital and school records for the child’s name and discussions with people who might know where the mother and child were.

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