Family Law

Divorce by Publication: When You Can't Find and Serve Your Spouse Personally

By Aaron Thomas, Attorney

What is Service By Publication?

Each divorce starts when a plaintiff spouse files a petition for divorce against a defendant spouse. Before the case reaches a courtroom, however, the plaintiff spouse must give the defendant spouse notice of the case filing. This notice is called “service of process.” Usually, the plaintiff’s attorney or a neutral third party delivers a copy of the petition and summons to appear in court directly to the defendant by hand or mail.

Sometimes a defendant can be hard to track down. When a plaintiff can’t find a defendant, certain jurisdictions allow “service by publication,” which is when the plaintiff puts a notice of the lawsuit in a court-approved publication, such as a newspaper. This article will explain the basics of service by publication.

The Purpose of Service

The plaintiff spouse in a divorce must file a petition for divorce in the county clerk’s office. The clerk’s office will usually give the plaintiff a “summons,” which is a legal document that puts the defendant spouse on notice that the case has been filed, and requires that spouse to appear in court. Courts require plaintiffs to serve the summons on defendants to ensure they have the opportunity to defend themselves in the lawsuit.

Common Types of Service

In all jurisdictions, the most common type of service is “personal service,” which is delivering the divorce filing and summons directly to the defendant. In many jurisdictions, the sheriff or constable serves summons on defendants. Sometimes, a plaintiff spouse can deliver the divorce paperwork directly to the defendant spouse. In other cases, a plaintiff spouse or the plaintiff’s attorney will hire a professional process server to deliver the paperwork to the defendant spouse. Whomever delivers the summons then completes an affidavit verifying to the court that service is complete.

In many cases, the defendant spouse is willing to acknowledge receipt of the summons. For the plaintiff, this can eliminate the cost of hiring a process server, and for the defendant, it eliminates the potential embarrassment of being served at work or in another public place. The defendant can complete an “acknowledgement of service” form to be filed with the court clerk.

In addition to personal service, most jurisdictions also allow “substitute service,” which is when the plaintiff has the summons delivered directly to the defendant’s home, place of business, or sent by certified mail. Jurisdictions vary on the types of substitute service allowed, so check with your local court clerk’s office or an attorney before attempting substitute service.

Service by Publication

Sometimes, a plaintiff spouse can’t locate the defendant spouse. The defendant may have left the city or state without leaving a forwarding address. In some cases, the couple has lived apart for a long time without filing for divorce and they’ve fallen out of contact. In these situations, the court may allow a spouse to complete service by publication.

Service by publication is when a plaintiff notifies a defendant of a lawsuit by publishing a notice in a court-approved newspaper or other publication. This type of notice is called “constructive notice.” While the defendant may not have actually received notice, publishing information about the lawsuit publicly is sufficient to fulfill the notice requirement, and the lawsuit may begin.

Typically, courts require a plaintiff to exhaust all other options to serve the defendant before allowing service by publication. The plaintiff or plaintiff’s attorney must submit an affidavit stating the efforts taken to track down the defendant and request permission to perform service by publication. If the court grants the request, the plaintiff can submit a notice to the court-approved publication. The plaintiff will usually pay a small fee to the publication for publishing the notice.

In most states, the notice must appear in the publication a certain number of times, or for a certain time period. For example, in Georgia, the notice must appear four times within the first 60 days after filing for divorce and the publications must be at least 7 days apart. The defendant is permitted a certain amount of time to respond to the petition for divorce (in Georgia, 60 days), and then the divorce case can proceed whether or not the defendant has responded.

If you have additional questions about service, you should contact a local family law attorney.

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