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When a Defendant Cannot Be Served Directly in a Divorce - Default Divorces and Notices of Publication as an Alternative Process for Serving a Complaint

Jul 15, 2015 @ 04:01 PM — by Michael Green

In those cases where a defendant is no longer at their last known address and cannot be served directly because their new whereabouts are unknown, the Court may allow service of a divorce complaint via publication notice.  These are generally divorce cases where the parties have not been in touch for a long time.  The defendant in the divorce cannot then be served the divorce complaint via personal service through a process server or acknowledgment of service, which is otherwise required by the Court Rules.  

A motion is made to the court requesting publication notice after due diligence to find the defendant has been made.  Generally, it requires an inquiry to relatives, the military, a postmaster, the Division of Motor Vehicles and an attempt to serve process at the last known address.  An affidavit of due diligence may first be obtained stating that an attempt to serve the defendant at the last known address was made but he or she no longer lives at that address.  In addition, letters of inquiry may be sent to relatives, the military, a postmaster, the DMV in attempt to locate the defendant.  Alternatively, an affidavit of non-military service may suffice as to an inquiry with the military and a DMV search may also assist in locating the individual.

Upon supplying the Court with documents that evidence a diligent inquiry in trying to locate the defendant, the Court may then permit notice via publication.  Generally, this means publishing the information in a local newspaper where the defendant's last known address is located regarding the divorce default hearing that is scheduled so that the individual may attend the hearing if they so choose.

A Plaintiff in a default divorce must generally also file a Case Information Statement, which states their assets, debts and liabilities as well as their income from the last several years.  If there is equitable distribution to be made and child custody or child support issues, the Court may have more difficulty in its discretion in permitting a divorce via publication alone.  If the divorce generally has no issues regarding equitable distribution and the Plaintiff is not requesting child support or alimony, the Court will more likely permit the divorce after publication notice alone.

If you have questions regarding a default divorce via publication, please call our office to speak to Mr. Green, as an experienced divorce attorney and family law attorney, with a free consultation at 732-390-0480 or 201-242-1119.  Night and weekend appointments are available. 

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