For the majority of people, going through the divorce process can be a complex and surreal period in their lives. In some cases, however, even starting the process can be exceedingly difficult. “Starting the process” does not refer to the situation where most people contemplating a divorce find themselves, namely, grappling with the decision of whether to proceed with the divorce or not. This situation involves an individual wanting to move forward with a divorce, but the other party cannot be located, does not want to be located, or refuses to participate in the legal proceedings. Faced with this situation, some people will choose to remain married because they believe they have no other options. Yet, it is exactly in these circumstances that a dissolution via service by publication, or constructive service, can help individuals to be awarded a divorce, find closure, and allow them to move forward.
PERSONAL SERVICE OF PROCESS
Typically, a dissolution of marriage case requires a petition for dissolution of marriage and other related documents to be filed by one spouse with the other spouse getting served with, or accepting service of, those documents. This is referred to as “personal service of process.” The rationale behind personal service of process is that the other spouse has been provided notice of the pending litigation, and thus, has the opportunity to respond to the petition and be able to participate in the case. There are specific deadlines involved, and being served with the documents usually means that the spouse initiating the divorce does not (shadily) proceed with the case without the other’s knowledge.
But what can be done when, for example, the other spouse left years ago and the individual seeking a divorce has no idea where they could be living, or frankly, if they are actually living. In this circumstance, getting the absent spouse personally served is not only unlikely, but perhaps, impossible. In circumstances where personal service cannot be accomplished, the spouse seeking a divorce can complete the necessary service of the documents using the method of “service by publication” or “constructive service.”
SERVICE BY PUBLICATION
The case law makes clear that service by publication can only be used as a last resort. Further, there are only a few specific types of cases in which this method of service can be utilized. The procedure must be followed strictly.
- Affidavit of Diligent Search and Inquiry. The first step is to ensure that the spouse filing the petition has made a concerted effort to try and discover the address or location of the other spouse. This requires filing an Affidavit of Diligent Search and Inquiry in which several sources must be searched[1] in an effort to locate the other spouse. These sources[2] include the United States Post Office inquiry through the Freedom of Information Act; last known employment; names and addresses of relative; law enforcement agencies; Department of Corrections; hospitals;
- Notice of Action. Once the search is completed, the Affidavit of Diligent Search and Inquiry is filed along with the petition for dissolution of marriage and other documents. A Notice of Action indicating that there is a divorce action pending against the other spouse and indicating they have a certain amount of time to provide a response is also filed and returned by the Clerk of Court to the petitioner or petitioner’s attorney.
- Publication. The Notice of Action must then be published in a newspaper in the county where the petition is pending once during each week for four consecutive weeks.
- Proof of Publication. Once the Notice of Action has been published for the required amount of time, the proof of publication is filed.
- Default. If the other spouse fails to provide a response within the allotted time, a Motion for Default is filed requesting the Clerk of Court enter a default against the other spouse.
- Final Hearing. Once the default is entered against the other spouse, the petitioner can move toward finalizing the divorce by scheduling a final hearing with the Court.
It should be noted that by utilizing service by publication, the petitioner must still prove their elements of the case. Generally, courts disfavor making make determinations regarding the children such as parental responsibility and timesharing based on the entry of a default; yet, if the Court finds that the petitioner requests are in the best interests of the children, they will consider making such decisions. Further, the Court can distribute property that is subject to the Court’s jurisdiction (real property must be sufficiently described in the Notice of Action in order for the Court to obtain the proper jurisdiction over it). Determinations regarding issues of child support and alimony are more complex and depend on whether the Court has personal jurisdiction over the other spouse.
Obtaining a divorce through service by publication is a unique and complicated legal process designed to address the legal challenges when one spouse cannot be located or is purposely being evasive. While it is a last resort, it is a valuable method providing individuals a path forward to getting divorced and reach closure. If you would like to discuss this issue or any other family law issue, please schedule a consultation with the attorneys of Artemis Family Law Group.
[1] In my practice, the client employs a private investigator to complete this search. This is the more economical method for the client since the cost of the private investigator to complete this task is usually less than paying hourly attorney fees.
[2] Admittedly, some of the places to be searched seem outdated, i.e. telephone listings in the area where the other spouse last resided