Service by Publication in California
Each person is required to receive actual notice, have an opportunity to appear and be heard before any adverse legal action may be taken the person; this is known as due process. Divorce is no exception to this requirement. The litigation to dissolve the marriage begins with filing of the proper forms with the court and having the other spouse personally served. But, what if you cannot you cannot locate your spouse? A San Francisco divorce lawyer may be able to help you use Divorce by Publication to legally end your marriage.
How and when is Service by Publication available?
Service by publication is available when the other spouse cannot be located, often occurring when that spouse leaves or abandons the marriage. Service by publication does not apply when the filing spouse, the petitioner, knows where the other or responding spouse is located and that spouse refuses to accept service. A professional process server may be retained to properly service the refusing spouse.
You and your attorney will ask the judge for to permit you to serve the initial pleadings, or summons and petition and all required forms, by publication in a local newspaper. First, a diligent search to find your spouse is required:
- Reviewing vital statistics records, real estate records, motor vehicle registration records and other public records,
- Reviewing utility records and phone records,
- Talking to family and friends who may know where s/he is located,
- Talking to former employers to see if the person left a forwarding address.
Thanks to the internet, information about your spouse may be gained that way, also.
You and your attorney will be required to report any and all information you gained in an affidavit about your diligence. Under penalty of perjury, you will inform the court about your diligent efforts to seek your spouse, that you used due diligence. Some counties may require the appointment of an attorney ad litem to conduct a neutral and independent investigation, especially if children and/or property are involved.
What is the Service by Publication Process?
If the judge grants your request, you will pay the cost to post a notice in the newspaper once a week for four consecutive weeks. A court may designate a specific newspaper to use; or, you will may select a newspaper that to post legal notices. After the notice runs all four weeks, and after you provide to the court proof that the posting ran, you may ask the judge for a default decree, which you will serve by publication, also.
The petitioner must pay, also, the attorney ad litem’s fee and all other required court costs. The entire process may take between four and six months.
Divorce is much more than filing paperwork and is legal procedure that nearly always requires an attorney, especially for complicated matters such as an absent spouse. A California divorce lawyer from Silverman & Silverman, Attorneys at Law can help.