In most divorces, both spouses are on board with ending the marriage. In fact, there is usually mutual agreement that the marriage should end as quickly and as amicably as possible. However, there are some situations in which starting the divorce process isn't an easy matter because a spouse has gone missing, making it impossible to serve them with divorce papers.
Fortunately, the law recognizes that this can be a problem and has established processes for helping people to get a divorce from a spouse who cannot be located. If you cannot locate your spouse, getting a divorce may be more time-consuming, but it can eventually go forward.
Process Serving
When you file a divorce case with the courts, you are required to notify your spouse by giving or "serving" them with the divorce petition. This is so your spouse can respond to the petition and hire a lawyer to represent his or her interests in the divorce. The documents included with the petition explain what your spouse should do to respond to the case.
If both you and your spouse want the divorce, it is possible to simply mail or give the divorce papers to him or her. If your spouse is contesting the divorce, however, or you don't know where your spouse is living or working, you will need to go through the process of having papers legally served. You cannot serve the papers yourself; somebody else has to do it for you. In New York, anyone over the age of 18 can serve papers, but many people choose to hire a professional process server to do this.
Missing Spouse
If you don't know where your spouse can be found so that he or she can be served, you will have to develop a strategy that shows that you made a good-faith effort to find him or her. A lawyer can be very helpful in this process, as he or she likely has experience in this area and can put you in touch with private investigators and process servers who have experience in tracking down people who don't want to be found.
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Recording Your Search
If you are forced to go to court to ask for a divorce without being able to serve your ex with papers, the judge will want to know what you've done to find your spouse. Things that you can do to find your spouse include contacting friends and family members, calling his or her last place of employment, checking social media and doing Internet searches to see if he or she has resurfaced with a new address or phone number. Obviously, if you are concerned about domestic violence, it is important to talk with your attorney to develop safe ways of searching without putting you or your children in danger.
From the time that you begin your search, keep a written record of everything that you've done to locate your ex. This includes writing down the dates and times of attempted contact, maintaining copies of any emails related to your search and printing out phone logs showing that you actually made these calls. If you have hired a private investigator or process server, keep your bills and reports from these individuals handy.
Service by Publication
If your efforts to locate your spouse and serve them with papers are unsuccessful, you and your attorney can go to court and ask a judge for permission to serve your spouse with papers via publication. This means that you will publish a notice in a newspaper letting your spouse know that you are filing for divorce. From the date of that publication, your spouse will have a certain amount of time to respond. If he or she does not, you'll be able to move forward with your divorce case.
Final Word
Divorce is a stressful experience and a spouse who is gone missing, or who is deliberately dodging efforts at being served with papers, makes it even more so. Getting good legal advice from an experienced divorce attorney can be very helpful in speeding up the process of locating your spouse, getting a divorce settlement and moving on.