An Action for Divorce, like most legal Actions, must be commenced with some legal formalities, including service upon the defendant of the documents notifying him or her that an Action has been commenced. This gives the Court personal jurisdiction of the defendant so that the Court may exercise its authority over the defendant. A problem is presented if the person commencing the Action (the plaintiff) does not know where to find the defendant.
If a spouse has left his or her husband or wife and their home, the remaining spouse may not know the departing spouse s location. This is particularly true when the separation has been consensual and long-standing.
The Domestic Relations Law of the State of New York requires that the documents commencing an Action for Divorce (usually a Summons and Complaint) be either personally delivered to the defendant or served on the defendant in another manner allowed by Court Order. If a defendant is not properly notified of the pending lawsuit, and he or she fails to respond in the appropriate legal manner, the Court will not permit the plaintiff to obtain a default Judgment of Divorce. This is because the Court will not be assured that the defendant actually knew of the commencement of the Action.
If personal delivery of the Summons and Complaint to the defendant is not possible, the plaintiff must get a Court Order providing for an alternative method of service. The alternative method must be reasonably calculated, under the circumstances, to apprise the defendant of the pending lawsuit. Among the methods that are permitted pursuant to Court Order are:
(1) delivery of the Summons and Complaint to a person of suitable age and discretion at the actual place of business or home of the defendant, and by either mailing the Summons and Complaint to the defendant at his or her last known residence or at his or her actual place of business, carefully following certain legal formalities; or
(2) by affixing the Summons and Complaint to the door of the actual place of business or the home of the defendant within New York State, and by either mailing it to the defendant at his or her last known residence or at his or her actual place of business, carefully following certain legal formalities.
If the Court finds that any of the above-listed methods is impracticable, the Court may direct service upon defendant by publication. This entails publishing certain information in an English language newspaper designated by Court Order as most likely to give notice to defendant. The publications must be repeated once in each of three successive weeks. The plaintiff may also be required to mail a copy of the Summons and Complaint to the defendant.
Complying with all of the many legal formalities required to commence an Action for Divorce when the location of a spouse is unknown requires the assistance of a divorce attorney having experience in this area of New York State divorce law.