The New York State Domestic Relations Law mandates that a Defendant spouse be served with a divorce Summons in person in order to finalize the divorce. However, in some cases, the Plaintiff spouse has lost contact with his or her spouse, does not know the present whereabouts of this spouse and is unable to locate the spouse for personal service of process, despite diligent efforts to make contact.
Along with the initial Summons, an Affidavit of Due Diligence must be filed with the court explaining the steps taken to try to locate the spouse. To begin, the Plaintiff must prove to the court that he/she has tried to locate the spouse, detailing the search efforts, and is unable to find him or her. This is done by first sending out requests to the five branches of the US Military, the Board of Elections in the five boroughs of New York City, the New York Department of Motor Vehicles, the Post Office in the neighborhood of the Defendant spouse's last known address, and the telephone and internet directories, for any information they may have on his or her present whereabouts. In the event that no information is available, the search results of these agencies must be filed with the Affidavit of Due Diligence to obtain an Order of Publication from the court, which allows the Summons to be published in a legal notice in a neighborhood newspaper within 30 days, once per week for three consecutive weeks. This dispenses with the requirement for personal service, and puts the missing Defendant spouse on notice of the fact that a divorce has been filed. However, if an address is found for the Defendant, this must be checked out before publication to determine if the Defendant resides there, and if so, then personal service of the Summons is required, instead of service by publication.
Once the publication is completed, the newspaper will issue an Affidavit of Publication which is filed with the divorce application in order to obtain the final divorce. A Publication Divorce is the only way to divorce a missing spouse. The advantage of the Divorce by Publication is that it can be obtained without the knowledge of the Defendant, because in most cases, the missing Defendant spouse will never see the Notice of Publication of the Summons in the newspaper.