What happens when you cannot locate your spouse and you want to obtain a divorce? When this occurs, things get only worse. However, in the state of Georgia, when you are unable to find your spouse, you can get a divorce by serving your spouse through a process called “service by publication.” Legally sufficient service is required for a divorce case (See O.C.G.A. § 9-11-4). However, service can be completed through publication in the newspaper if certain requirements are met. It any event, filing a divorce to be served by publication should only be used in the appropriate situation.
Many people think that a divorce obtained by publication is an “uncontested divorce.” However, this is inaccurate. Because the divorce is being filed without a signed divorce settlement agreement being reached between the parties, the case is actually a contested divorce. Although the majority of divorce cases served by publication do not actually result in a response from the other party or conflict, the divorce case is not technically an “uncontested divorce.”
Common Types of Service in a Georgia Divorce Case
In a general divorce case, in the state of Georgia, a spouse can be served with divorce papers in several ways. The most common type of service is known as “personal service” which is the process of delivering the complaint and summons directly to the defendant. In some cases, the plaintiff spouse may decide to deliver the divorce papers directly to the defendant spouse. When the service is complete, an affidavit may be submitted to verify the completion of the service. In a common case, the defendant spouse is more willing to acknowledge the summons receipt. By acknowledging the summons receipt, the plaintiff can avoid the cost of hiring a process server, and for the defendant, the potential embarrassment of being served at a workplace or a public place is eliminated. The defendant can complete an “acknowledgement of service” form to be filed with the court clerk.
Additionally, most jurisdictions also allow “substitute service,” in which the plaintiff directly has the summons delivered to the defendant’s home, place of business, or sent by the certified mail. The type of services varies depending on the jurisdictions thus it is important to check with your local court clerk’s office or an attorney before attempting to do a substitute service. However the process of service becomes very complicated if you cannot locate your spouse. Often times, it is determined that the spouse is nowhere to be found. In these scenarios, a divorce utilizing “service by publication” is the best route.
Process for Filing for Divorce by Publication in Georgia
Service by publication is governed by O.C.G.A. § 9-11-4 (e)(1) only in the event that only after due diligent defendant cannot be located. Legal system is designed to ensure that each party in a lawsuit is protected by due process, which requires giving a notice and a right to a fair hearing. Your divorce decree can be set aside later if the defendant’s right to due process is violated.
In the State of Georgia, under O.C.G.A. § 9-11-4(f)(1), if you have practiced due diligence to find your spouse, and the search has been fruitless, then you, as a petitioner, can file an Affidavit of Publication and Diligent Search, which is a notarized statement affirming that you have checked with your respondent (Spouse) family and relatives, checked with the landlord, and searched the telephone directory for respondent’s information. If the court is convinced, then the court will issue an Order of Publication, which will grant you permission to publish the Notice of Publication four times within the sixty (60) days period, as long as the publication is seven days apart. The publication will be filed in the county where the action arises.
Furthermore, Georgia Court in Thorpe v. Thorpe held that “when the person on whom service is to be made conceals himself to avoid the service of the summons, and the fact shall appear, by affidavit, to the satisfaction of the judge or clerk of the court, and it shall appear, either by affidavit or by a verified complaint on file, that a claim exists against the defendant in respect to whom the service is to be made, and that he is a necessary or proper party to the action, the judge or clerk may grant an order that the service be made by the publication of summons.” In Thorpe case, the respondent was intentionally hiding, which prompted the court to grant an order that the service be made by the publication of Summons.
The court must approve the request for the divorce petition is to be served by publication and it must be published in the official legal newspaper for the county your case is filed. The notice of the divorce case must be published four (4) times within sixty (60) days after you file it, and each publication must be seven (7) days apart. The published notice of the divorce will have the names of the parties, the name of the court where the case was filed, the type of case (divorce, legitimization, paternity, etc.), the date the case was filed, the date of the order for service by publication, and a notice for the defendant (non-filing party) to file an answer with the court within sixty (60) days.
Every county in Georgia is different. In some counties the court clerk will handle the publication process with the newspaper. In other counties, the petitioner (the person filing the divorce case) is responsible for working with the newspaper to publish the case. In addition, once notice of the divorce case is filed, an Affidavit of Publication must be filed with the court. All of this is rather complex, and is the reason most people hire an attorney to help with the process.
The missing spouse will get thirty (30) days after the last publication of notice to respond. Failure of the missing spouse to respond result in an unopposed petition for divorce. In other words, the divorce case is not uncontested by the other spouse. Usually a final hearing will need to be scheduled to complete and finalize the divorce case. The entire publication process will usually take at least six (6) weeks to complete or more.
Once the publication has been completed, the newspaper will mail an Affidavit of Publication, detailing the publication (dates, parties, etc.) to the attorney, party, or the court (depending on the circumstances of the case). The Affidavit of Publication should be filed with the court so that the case can be completed. In a divorce case, the Affidavit of Service will be required for a Final Judgment and Decree of Divorce to be granted by the court.
It is important to note that child support and alimony cannot be granted in a divorce served by publication. However, child custody, division of debts, division of property (that is located in Georgia) and the actual divorce can be granted by the court. Although the court will have the discretion to grant the divorce in by publication action, the Court does not have the discretion to make decisions regarding child support or alimony. However, these issues can be addressed later if the other party shows up later and (by example) files a case for modification of custody, division of assets/debts. Also, these issues can be addressed if the person that originally filed for the divorce later files another case for child support, etc. and serves their ex-spouse personally (via a sheriff’s deputy or process server).
Documents Required in State of Georgia for Service of Divorce by Publication
For proper service by publication in a Georgia divorce case, several documents must be prepared and filed with the court, which include but are not limited to:
- Complaint for Divorce and Summons
- Domestic Relations Financial Affidavit
- Affidavit of due diligence search
- Notice of Publication
- Order of Publication, Return of Service, and Order Protecting Service
- Child Support Worksheet (if required)
- Proposed Parenting Plan (if the case involves the custody of minor children)
- Report of Divorce, Annulment or Dissolution of Marriage
- Domestic Relations Case Filing Information Form
- Domestic Relations Case Final Disposition Information Form
- Affidavit of Publication
- Final Judgment and Decree of Divorce
A hearing may, or may not be required to obtain an order allowing the other party to be served by publication. This process usually goes much faster when the services of an experienced Georgia divorce law attorney are used.
Determining the Proper Venue when the Spouse is Missing
There is often confusion when trying to determine the proper venue when the spouse is missing and cannot be found. This is because under Georgia law, the Constitution states that the divorce action should be filed in the Superior Court of the County in which a defendant resides. However, if the defendant cannot be located in the State of Georgia or elsewhere, the proper venue is in the Superior Court of the county where the plaintiff is residing. It does not matter what county, state, or country you got married. It only matters where you live now and the facts and your knowledge (or lack of) regarding the whereabouts of your spouse.
Divorce in itself can be a very stressful process. On top of that when one spouse is missing, things do not get any better. But regardless, you do not have to go it alone. If you cannot locate your spouse and you have exercised due diligence in locating your spouse, then seek help immediately. Our experienced divorce attorneys have assisted many clients with a similar situation like yours. Call us at 770-609-1247 to speak with one of our caring divorce attorneys.