Several times each month we receive an inquiry from a potential client who wants a divorce but has lost track of his/her spouse but still wants to get a divorce. Below is what we usually tell them about their situation.
What Is a Publication Divorce?
An “ordinary” uncontested divorce requires that both parties sign the Settlement Agreement and all of the other documents necessary to get the case before the proper court. But, what if you have lost contact with your spouse and really, honestly do not know where he/she is or how to get in touch with him/her to get the divorce documents signed? This is what a “publication divorce” is for.
While the process for a publication divorce is straightforward, it is multi-step and everything must be done exactly correctly and to the judge’s satisfaction. Many times the judge will actually require that you come in for a hearing (official public meeting) with the him/her before a publication divorce will be granted.
A publication divorce is a divorce method of last resort. You must make a reasonable effort to find your spouse prior to filing the divorce. This does not necessarily mean that you must spend a lot of money trying to find him/her but you must make an honest and reasonably thorough effort in your search. Then, if you do not know where your spouse lives or works, and you cannot somehow find that information out, divorce by publication will be your only choice for “serving” your spouse with the divorce documents. You must prove to the Court that you have tried to locate your spouse and cannot find him/her. This must be done with an “Affidavit of Due Diligence” in which you explain to the Court what you have done to try to find your spouse and why you have not succeeded.
Using service by publication places special limitations on your divorce case, because the Court will not have “personal jurisdiction” over the Defendant (your spouse). You will not be able to get certain kinds of relief, such as child support or alimony, as part of the divorce. However, if the Defendant later acknowledges service, gets served by the sheriff, or files an Answer to the divorce, then your case will no longer be limited by the restrictions that apply to publication cases (but you may have a contested divorce).
Unlike in an ordinary uncontested divorce, in a publication divorce the Court can only do 3 things: grant a divorce; award the Plaintiff (you) with property that is in your actual possession already; and restore your maiden/pre-marital name. The judge cannot divide property allocate debts, award child support or alimony or address most of the other issues that are typical in a divorce. Technically, the judge is not even supposed to give you an order for custody of your minor children but it has been my experience that most judges will do this because they want it clear that you have the right to register the children for school, etc.
How do We “Do” a Publication Divorce?
Just as in an uncontested divorce, we must file a Complaint (or Petition) for Divorce. After that, if you still have not found your spouse, we must officially request that the Court order that publication be accomplished. We must also inform the Court of the “last-know” address of your spouse. That is the last address that you know where your spouse actually lived. Many times, that is actually your present or former address. The most important document for a divorce by publication is the Affidavit of Due Diligence that we have already mentioned.
After we file your Affidavit of Due Diligence and other documents, if the Court grants permission, the judge will then sign an Order of Publication. Then it will be necessary for the publication fee be paid (by you) for the newspaper to actually print the Notice of Publication. This is usually $80.00 but in some counties it is as high as $100.00. The Notice of Publication will then be published in the county’s official legal newspaper four times (usually four weeks in a row) and the Clerk of Superior Court will send a copy of the Notice of Publication to the Defendant’s last-known address by certified mail.
The Defendant will then have 60 days from the first date of actual publication by the newspaper to file an Answer if he/she wants to contest the case. But, actually, if the Defendant is really missing, he/she will probably not receive the certified mail or see the Notice of Publication in the newspaper either.
After the Notice of Publication has been published all four times, an “Affidavit of Publication” will be returned by the newspaper. We must then file this Affidavit of Publication with the Clerk of Superior Court to prove that service by publication has been completed. Sometimes the newspaper will file the Affidavit of Publication directly with the Clerk. Usually the judge will then sign an “Order Perfecting Service”, showing that the Court has reviewed the service by publication and finds that it was done properly.
After the judge has determined that the publication was done correctly and at least 60 days have passed from the first date of actual publication by the newspaper, the Court can grant the divorce. This is usually done at a hearing but, occasionally, the judge will grant the divorce without a hearing since an attorney is representing you and the paperwork has all been done correctly. At that hearing, the judge will sign a Final Judgment and Decree of divorce and that will complete the divorce.
If you later find out where your spouse lives or works (before the case is over), your spouse will need to be served by the Sheriff’s Department or your spouse must otherwise acknowledge service officially.
How Long Does a Publication Divorce Take?
Because of the multiple steps, the exacting requirements for a publication divorce and the 60-day waiting period from when the publication actually starts, publication divorces usually take 6 or 7 weeks longer than an uncontested divorce and cost more than an uncontested divorce. From start to finish for a publication divorce it usually takes between 13 and 16 weeks to complete the case and obtain a final decree of divorce (compared to between 6 and 10 weeks for an uncontested divorce).
How Much Does it Cost?
For a publication divorce, we presently charge $699 in attorney’s fee and you must also pay the publication fee ($80 to $100) plus all of the other normal filing fees and court costs (typically totaling about $250). Typically, the total cost (including attorney’s fee, court costs and the publication fee) of a publication divorce is around $1,050.
Because a publication divorce is a last resort process for obtaining a divorce, we always recommend that our clients look very diligently for their spouse and try to complete the case in the ordinary uncontested process where both parties sign all of the necessary divorce documents. But, we are happy to assist you with a publication divorce if it is clear that is what you need.