Sometimes a spouse disappears out of carelessness, and sometimes out of spite. A spouse leaves town or state without leaving a forwarding address. In some cases, the couple lives apart for a long time without divorcing, so they drift apart. Sometimes disappearing spouses believe they can hold up an action if they cannot be personally served. But it is not so. When all else fails, a petitioner may legally notify a respondent of a divorce in a newspaper advertisement.
Divorce by publication joins the spirit and the letter of the law in a procedure that has ended the marriages of thousands of people who cannot find and serve personally a missing spouse. Service by publication insures that a party is aware of litigation pending against him or her.
Divorce by publication frees spouses who would otherwise be chained to marriages that exist in name only.
Each divorce starts when a plaintiff (or petitioner) spouse files a petition (or complaint) for divorce against a defendant (or respondent) spouse. The plaintiff spouse files in the court clerk’s office. The clerk’s office normally gives the plaintiff a summons, a legal document that puts the defendant on notice of the case. The summons requires that spouse make an appearance in the case. Courts require plaintiffs to serve the summons to ensure they have the opportunity to defend themselves. This notice is called “service of process.” It insures that no one is blindsided by litigation and a defendant has adequate time to prepare for action.
Normally the plaintiff’s attorney or a neutral third party delivers the petition and summons (“the divorce papers”) directly to the defendant by hand or mail. In all jurisdictions, the most common type of service is “personal service,” where the divorce papers go directly to the defendant. In many jurisdictions, the sheriff or constable serves the summons. 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 hires a professional process server to deliver the paperwork to the defendant spouse.
The person who delivers the divorce papers completes an affidavit verifying that service has happened. In many cases, the defendant spouse acknowledges receipt of the summons. For the plaintiff, this eliminates the cost of a process server; for the defendant, it eliminates being served at work or in another public place. The defendant completes an acknowledgement of service form that goes back to the clerk. In addition to personal service, most jurisdictions also allow substitute service, where the defendant receives the summons at home, a place of business, or by certified mail.
When a plaintiff cannot locate a defendant, the court may allow service by publication. In this regime, the 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 “a constructive notice.” While the defendant may not have actually received notice, (or even see it or read it) publishing information about the lawsuit publicly fulfills the notice requirement, so the lawsuit may begin. Normally service by publication results in a default judgment for the plaintiff since the defendant fails to answer the summons.
Service by publication is a last resort; courts require a plaintiff to make “a diligent effort” and exhaust all other options of service before permitting it. The plaintiff or his or her attorney submits an affidavit stating the efforts taken to locate the defendant and requesting permission for service by publication. When the court grants the request, the plaintiff submits a notice to the court-approved publication. The plaintiff pays a small fee to the publication for publishing the notice. In most states, the notice must appear a certain number of times or for a certain time period.