Under New York law, there are two ways in which someone can get a divorce. There are uncontested divorces where both parties are in full agreement to the terms of the divorce and are willing to sign paperwork for the matter to proceed to a judge for the signing of a final judgment of divorce. During the process of obtaining an uncontested divorce, it is often not necessary for you to make an appearance in court.
If the parties are not in agreement or one spouse is unwilling to cooperate then the matter may have to proceed on a contested basis, which requires that the divorce process be overseen by a judge. In these cases, both parties are required to go to court and resolve all marital issues. A contested divorce may potentially go to trial to determine the resolution of marital assets, child support, equitable distribution and maintenance, if applicable.
Divorce by Default
Did you know that you can get a divorce without your spouse’s signature? What most people do not realize is that this may be the only way to divorce a spouse with whom you have lost touch. This method is called a divorce by default (or publication divorce) and while it is appealing, it can also be time consuming and expensive.
In order to satisfy the Court to allow you to proceed in this manner, the first step is to conduct a diligent search. This involves your attorney or hired help attempting to obtain a current address at which your spouse may be served with legal process of your divorce papers. If an address is obtained then a licensed process server is hired and they will attempt to personally serve your spouse at that address. If your spouse is personally served but does not answer the divorce, then you can request a divorce after waiting 20 days (30 days if your spouse is living outside of NY state).
If the diligent search is unsuccessful, then the attorney will bring a motion (legal request) for an Order for publication. The judge will review the attorney’s efforts and determine if the motion for publication will be approved. If the court approves the publication, then the Summons with Notice to your divorce will need to be published in a designated newspaper in the jurisdiction/county of your spouse’s last known address(es).
This publication must be done once a week for three consecutive weeks. This publication can be very expensive depending on what newspaper is approved by the Court. These costs should be considered and can be alleviated by attempting to search for your spouse prior to hiring an attorney.
Thirty days after the last required publication, a divorce packet will be submitted to the Judge for final signature (assuming the spouse has not appeared and answered after the publication).
This process can be complex and having an experienced family law attorney to assist you here can be vital in finally divorcing a missing spouse.