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n a divorce, it sometimes is “impossible” to find and personally serve the defendant-spouse. After other efforts have been made, service by publication may be used as a last resort after “diligent” searching by other methods under CPLR 315. Service by publication is time consuming and may be costly. A poor person’s fee waiver for certain court filing fees is not extended to service by publication fees, except it would be free to publish in the New York Law Journal if you follow certain instructions.
To be granted court approval to serve by publication, the plaintiff must show, by evidence submitted to the court (such as letters to government and non-government entities trying to locate the defendant) that diligent efforts were made to locate the defendant. A diligent search can be made by searching the following (all of which are mandatory):
- U.S. Military
- New York City Board of Elections (or local board of elections)
- New York State Department of Motor Vehicles
- United States Postal Service
- New York City Telephone Directories (or local telephone directories)
- Internet search sites
- Visiting the person’s last known address
An attorney can make sure that the plaintiff satisfies each of these diligent searches.
All of this evidence must be contained in an affidavit signed by the plaintiff as attached
“exhibits”. As with all affidavits, it is required to be signed and notarized. The judge will (hopefully) grant the Order to Serve by Publication if all of the requirements are met.
To actually have the publication made, there needs to be the Order to Serve by Publication and a copy of the summons with notice. The newspaper must publish the summons with notice once a week for three weeks in a row. After that period, the clerks at the newspaper can give the plaintiff a sworn statement that the advertisement was published for three consecutive weeks. At this point, the plaintiff can complete the divorce process.