What happens if I can’t find the other party to get them served? – North Carolina

Short Answer

In North Carolina, a family law case generally cannot move forward until the other party is properly served with the summons and complaint (or accepts service). If the other party cannot be found after a documented, diligent search, the court may allow service by publication in a newspaper under North Carolina’s civil rules. Service by publication can let a case proceed, but it often limits what orders the court can enter until personal service happens.

Understanding the Problem

In a North Carolina family law case, the main decision point is whether the plaintiff can prove the other party cannot be located in time to complete standard service. The issue is not whether the case has merit, but whether the court can require the defendant to respond based on legally valid notice. When the defendant cannot be found, the question becomes whether the court will allow an alternative method of service so the case can start and the court can take action.

Apply the Law

North Carolina courts require proper “service of process” to start most family law cases. Service usually happens through the sheriff or another authorized person delivering papers, or through methods like certified mail when allowed. If the plaintiff cannot locate the defendant after due diligence, North Carolina procedure allows service by publication (publishing a legal notice) if the required steps are followed and the proper affidavits are filed. Courts treat service rules strictly because defective service can later undermine orders entered in the case.

Key Requirements

Use a primary service method first: The case typically starts with a summons and complaint that must be served using an allowed method (often sheriff/personal service, acceptance of service, or mail service where permitted).
Document “due diligence” to find the defendant: Before publication is permitted, the plaintiff must show real, practical efforts to locate the defendant, usually through a sworn affidavit describing the search steps taken.
Follow publication and proof rules exactly: If publication is authorized, the plaintiff must publish the notice in the proper place and then file proof (such as an affidavit from the publisher and an affidavit about any required mailing efforts) so the court can treat service as completed.

What the Statutes Say

N.C. Gen. Stat. Chapter 1A, Rule 4 (Service of process, including publication) – Sets the approved methods for serving a summons and the circumstances and steps for service by publication.
N.C. Gen. Stat. § 1-75.10 (Proof of service) – Explains how to prove service, including what affidavits are typically required for service by publication and for mail-based service.

Analysis

Apply the Rule to the Facts: If no reliable address exists for the other party, standard service methods (sheriff/personal service, acceptance, or mail service where allowed) may fail. North Carolina procedure then focuses on whether the filing party can show “due diligence” to locate the other party and can present that effort in a sworn statement. If the court accepts that showing, it can allow service by publication, and the case can proceed under the limits that apply when service is not personal.

Process & Timing

Who files: The plaintiff (the person who started the case). Where: The Clerk of Superior Court (often for divorce) or District Court civil filing via the clerk’s office (often for custody/support), in the county where venue is proper. What: A motion/request to allow service by publication plus a sworn affidavit describing the search efforts, along with a proposed notice for publication (forms and local requirements vary by county). When: After reasonable service attempts fail and before asking the court to treat the case as served.
Publication step: If the court authorizes publication, the notice must run in a qualifying newspaper and for the required schedule under Rule 4, and any required mailing to the last known address must be handled and documented.
Proof and next action: After publication finishes, the plaintiff files proof of publication and an affidavit of mailing (if required). The court can then treat service as completed for purposes allowed by the type of case and requested relief, and the case can move to the next procedural step (such as entry of default if the defendant does not respond).

Exceptions & Pitfalls

Service by publication may limit remedies: In many family law situations, publication can support the court’s authority to address “status” issues (like dissolving the marriage) or other limited relief, but the court may not be able to enter certain personal-money or personal-obligation orders without personal jurisdiction.
Weak “due diligence” proof: Courts often reject publication requests when the affidavit is vague (for example, stating only “cannot locate”) instead of listing concrete steps (contacts attempted, last known addresses checked, employer/relative inquiries, online searches, and returned mail results).
Strict compliance problems: Publishing in the wrong newspaper, using the wrong wording, missing required run dates, or failing to file the correct proof can make service defective and create delays or later challenges to orders.

Conclusion

When the other party cannot be found in a North Carolina family law case, the case usually cannot proceed until service is completed. After standard service attempts fail, the court may allow service by publication if the filing party shows due diligence through a detailed affidavit and then follows the publication and proof requirements strictly. The practical next step is to file a motion to permit service by publication with a sworn due-diligence affidavit in the clerk’s office as soon as it is clear personal service is not working.

Talk to a Family Law Attorney

If someone is avoiding service or cannot be located and that is blocking a North Carolina family law case from moving forward, an attorney can help document due diligence, prepare the correct filings, and avoid service defects that cause delays. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.