If you are pursuing a family law claim against your spouse, whether it be a claim for absolute divorce, child custody, equitable distribution, or another type of claim, your spouse will need to be properly served with the summons, complaint and other legal documents. Service on an opposing party is required under the North Carolina Rules of Civil Procedure because it is the formal way in which a party receives notice of the claims that have been filed against him or her. There are two ways that service is normally accomplished in North Carolina: in-person service by sheriff, or service by certified mail. However, what if you are in a situation where you cannot locate your spouse? Service by sheriff or certified mail will only work if you know of an address where your spouse can be found. If you genuinely do not know where your spouse is, there is another (albeit uncommonly used) method of service under the Rules of Civil Procedure known as “service by publication.”
Service by publication is considered to be a last resort, and it is highly scrutinized by the Court when used by a plaintiff. The Rules of Civil Procedure allows service by publication when the defendant cannot with “due diligence” be served by personal service (by sheriff) or by mail. Due diligence means that a plaintiff must use all resources reasonably available to attempt to locate the defendant. If the information necessary for plaintiff to find the defendant is either known by the plaintiff or can be ascertained by the plaintiff using due diligence, then service by publication is improper and can be overturned. The statute does not define what constitutes “due diligence” as a concrete set of steps the plaintiff must take; however, the plaintiff should at least attempt service by another means before he or she resorts to using service by publication. The plaintiff should also check records available through the post office, the DMV, or the county register of deeds or clerk of court in order to try and find information about the defendant’s whereabouts. A plaintiff should also try and contact directory assistance or the defendant’s insurance company (if known) to try and find out more information. A private investigator may also be hired to try and locate the defendant if all else fails. If a plaintiff has tried with due diligence to find the defendant and serve him by personal service or by mail, then service by publication is proper.
Service by publication requires a plaintiff to publish a notice once a week for three successive weeks in a newspaper that is qualified for legal advertising in accordance with N.C. Gen. Stat. § 1-597 and N.C. Gen. Stat. § 1-598. The plaintiff must choose a newspaper that is circulated in the area where the plaintiff believes the defendant is located. If the plaintiff has absolutely no idea where the defendant may be located, he or she must choose a newspaper that is circulated in the county where the action is pending. If the plaintiff knows that the defendant has a post-office address or can determine the defendant’s post-office address with reasonable diligence, a copy of the notice of service by publication must be mailed to the defendant’s post-office address at the time of or immediately prior to the first publication. If the plaintiff fails to mail the notice to defendant’s known post-office address, service of process by publication can be voided. However, Rule 4(j) does not require mailing of a notice to an address where defendant no longer resides.
A notice of service by publication must:
- designate the court where the action is filed and the caption
- be directed to the defendant sought to be served
- state that a pleading seeking relief against defendant has been filed
- state the nature of the relief being sought
- require defendant to enter a defense to such pleading within 40 days after a date stated in the notice, exclusive of such date, which date shall be the date of the first publication of notice or the date when the complaint is required to be filed, whichever is later, and, further, notify the defendant that if he or she fails to make defense within the time required, plaintiff will apply to the Court for the relief sought
- in case of an attachment, state the information required by N.C. Gen. Stat. § 1-440.14
- be subscribed by plaintiff or his or her attorney and give the post-office address of the signer
- be substantially in the printed form set out in the statute.
Once service by publication has been completed, plaintiff must file a document called an affidavit showing plaintiff published noticed and mailed notice in accordance with N.C. Gen. Stat. § 1-75.10(2), the circumstances warranting use of service by publication, and any information known regarding defendant’s location. The newspaper must also provide an affidavit stating that publication has occurred specifying the first and last date of publication.
Although this article provides some basic information about service by publication, it is a complicated form of service and can easily be overturned if every required step is not taken. It is important that you consult with a knowledgeable family law attorney about your specific case and whether service by publication would be a proper method for you to use. Call The Doyle Law Group, P.A. today at (919) 301-8843 to make an appointment to speak with one of our attorneys.
Protecting your Privacy ~ Your privacy is our primary concern. At the Doyle Law Group, we understand the importance of protecting your privacy and will never share your contact information with a 3rd party. Contacting our law firm does not imply any form of attorney-client relationship.