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 proceed in court before a judge. Both parties are required to go to court and resolve all marital issues and potentially go to trial to determine the resolution of marital assets, child support, equitable distribution and maintenance.
Also, did you know that you can get a divorce without your spouse’s signature? What most people do not realize is this method called a divorce by default (or publication divorce) can be the only way to divorce a spouse who you have lost touch with. However this method, while appealing is very time consuming and often very expensive.
In order to satisfy the Court to allow you to proceed in this manner, the first step is to conduct what is called a diligent search. This requires your attorney or a hired professional who will have to search for your spouse in an attempt to get a current address at which your spouse may be served in-hand with legal papers of your divorce. If an address is located 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 spouse is living outside of NY state).
If the diligent search is unsuccessful, then the attorney will put in a motion (legal request) for an Order for publication. The judge will review the attorneys efforts and determine if the 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 of where your spouses last resided.
This publication must be done once per week for three consecutive weeks. This publication can be expensive depending on what newspaper is approved. These costs should be considered and can be alleviated by attempting to search for your spouse prior to hiring an attorney.
Once the publication is completed, then 30 days after the last publication, the 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, like the Law Offices of Kreuza Ganolli, to assist can be vital in finally divorcing a missing spouse.