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Is it true that you can’t have a Divorce without participation
of your spouse? A look at service by publication.

March 24, 2022

Are you seeking a divorce but unaware of the whereabouts of your spouse? Although it might a person’s inability to locate their spouse might seem unusual, it is actually more common than you might think. Picture this. A married person (Plaintiff) decides one day that they no longer love their spouse (Defendant) and no longer want to live together. Plaintiff moves out of the marital residence and begins a new life without Defendant. A new home, a new job, a new set of friends, maybe even a move to an entirely different location. After a period of time passes, Plaintiff realizes that even though that relationship has long since ended, the marriage is still on the books.

Due to the laws against bigamy (being married to more than one spouse at the same time), Plaintiff is unable to get married again until the first marriage is dissolved through a divorce. Plaintiff, not panicking yet, decides to file for divorce. But there is the potential for a major problem. A Divorce is a civil lawsuit. Like all civil lawsuits in New Jersey, the defendant (the spouse in this case) must be served with the Divorce Complaint so that they have notice of the lawsuit as well as an opportunity to respond. Without service of the Complaint on the defendant, no lawsuit can proceed.

Herein lies the major problem for Plaintiff. They have lost all contact with Defendant, including phone and email. They don’t even have a good address for their spouse anymore. Although this is potentially a major problem, it is fixable. If, after good faith efforts, Plaintiff is unable to successfully serve Defendant with the Divorce Complaint, they can file a motion for Service by Publication. Such a motion essentially asks the Court to allow for process of service to be substituted with a legal notice in a local newspaper advertising the commencement of divorce proceedings. After permission is granted by the Court and the notice is put in the specified newspaper under the terms ordered by the Court, this will take the place of actually serving the Defendant and allow Plaintiff to proceed with the divorce despite never having personally served Defendant.

A motion for service by publication is quite complex. Extensive good faith efforts must be made to locate and serve a defendant before a Court will entertain a such a motion. Even after the motion is granted, a litigant must be careful to comply with all of the requirements of the publication notice as set forth by the Court. After the publication is submitted, the litigant must be prepared to quickly to proceed to the next phase of litigation (usually a request for a Default Judgment).

In conclusion, a losing touch with your spouse will not necessarily doom you to an eternal ghost marriage. But the road curing an inability to serve your spouse is long, winding and painstaking.

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