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How Do We Serve My Ex If I Can’t Find My Ex?

On occasion, I have had to serve the other party (the defendant) with a lawsuit for a divorce, child custody and support or other family law matter but was unable to locate him or her. It is easy to lose track of an ex, particularly when they share no children. Perhaps defendants from other states or even different countries return there after they separate and fail to leave a forwarding address. Other times, military families or other families who frequently relocate might lose track of the other parent or spouse. Clients sometimes don’t even know who the defendant is, let alone where the defendant resides. For example, in adoption cases, it is not uncommon for pregnant college students to have a single encounter with a complete stranger while intoxicated. This topic is complex and beyond the scope of this article. Instead, this is a general overview of a few related topics.

What’s the Legal Issue Involved? 

To oversimplify it, service of process usually means the sheriff serves the defendant by handing him or her a copy of a summons and complaint, the lawsuit. Service of process is the defendant’s Constitutional right to have due process of the law. It is serious business because a court order entered without proper jurisdiction is void and of no effect. When a client truly does not know where the defendant is, it becomes a time-consuming and expensive endeavor. The law requires due diligence when searching for a defendant. This makes sense when you consider that you don’t expect to have a court order that requires you to do (or stop doing) things when you had no idea there was even a lawsuit.

If the defendant isn’t located after diligent search efforts, the last resort is publishing a legal notice in the newspaper for three consecutive weeks. In that event, the publisher also executes a publisher’s affidavit documenting the dates the legal notice was run. All the other search efforts must also be documented and later explained in affidavits and/or testimony in court when a judge rules on the issue of jurisdiction.

What Kind of Search is Required?

There is no one-size-fits-all approach to searches because the search is based on the circumstances of the case. If the defendant cannot be served by the usual means including the sheriff and certified mail at the last known address, the search begins. Parties must actively contact the defendant’s former employer, family members, friends, and any other leads of which the client is aware. There are minimal searches the court generally expects, such as searching the public records. Examples of public records include the Register of Deeds, civil and criminal court filings, prison or incarceration records, social media and online directories, death records, trade licenses, Secretary of State for business owners, property tax records, military records, and the State Board of Elections records to name a few. 

Sometimes, defendants duck service of process, meaning they make every effort to avoid being served. In extremely rare cases, those facts might justify a ruling by the judge that the defendant was served because he or she had actual notice of the lawsuit and then intentionally evaded service. To be certain there is no possible way a court order could be jeopardized later because the defendant makes a later appearance claiming there was inadequate service, clients might choose to hire a private investigator or perform background searches. While there is no clear standard of exactly what you must do, if you search for the defendant the way you would search to locate a long lost relative who died as a millionaire with no other relatives, the search will be ideal.  

Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as of December 2016. www.AmyEdwardsFamilyLaw.com © 2016.

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