North Carolina is an absolute divorce state, meaning that couples must be separated for a period of a year before they can ask a family court for a divorce decree. Unfortunately, a lot can happen when couples are separated for long periods of time. Whether it is by circumstance or by design, once the relationship ends, some spouses stop communicating with each other. We’ve seen scenarios where spouses move away without a trace or simply don’t want to be found.
Why is this a problem? Because of concepts known as “service” and “jurisdiction”. Jurisdiction is Latin for “to speak the law”. In essence, for any court in this country to create a valid, enforceable order against a person, it must have personal jurisdiction over that person. If it a court does not have personal jurisdiction, then any order is invalid as to that person.
In order for a court to attain personal jurisdiction, a defendant must be served with the lawsuit. There are strict service requirements that a person must follow. This makes sense if you think about it: if you get sued, you should have a right to know about it so that you can defend yourself. So generally, defendants must be served in person with a lawsuit by a local sheriff or by certified mail under North Carolina law.
Service by Publication
When you cannot find your spouse, the problem is that you cannot have them personally served with the lawsuit. To address this problem, the Rules of Civil Procedure allow for service by publication. This means publishing a citation in a newspaper.
In order to serve a person by publication, there are numerous steps, which require the court’s approval. First, you must exercise “due diligence” in attempting to locate and serve your spouse. While “due diligence” is not defined by statute, it generally means you must exhaust all reasonable to try to find the person. This may include:
- Speaking with your spouse’s family members and friends;
- Searching on social media or on internet white pages;
- Hiring a private investigator;
- Checking with prior employers who may have forwarding information; or
- Checking public records, such as the post office, DMV, or county offices in your spouse’s last known location.
In essence, you must demonstrate to the court that you have actually been attempting to locate your spouse, but have been unsuccessful.
Once this step has been satisfied, then you must publish a notice to your spouse in a newspaper for three consecutive weeks. This newspaper will be in the county where your legal action is filed, or may be in the area where you believe your spouse to live. At the same time, you must physically send a notice of service by publication to the post office where your spouse was last known to reside. Only once you complete these steps and detail your efforts to the court in an affidavit, may the court approve the service and enter a divorce order.
New Direction Family Law
If you want to obtain a divorce, but your spouse does not want one or you cannot find your spouse, an attorney can help you. New Direction Family Law handles the legal issues that come with separations and divorces. We have a clear understanding of the law and can provide you with efficient and effective representation. Let us fight for you. Call New Direction Family Law today at (919) 719-3470 to schedule a consultation, or contact us at our website.