Are you interested in getting a divorce, but unable to locate your spouse? If you have done your due diligence in locating your spouse, but have been unsuccessful, you can still very well get a divorce. Utilizing Georgia law’s option for “Divorce by Publication” will prove to be beneficial in these circumstances. However, this should be the last resort, and only be utilized when no other alternatives of locating your spouse are available. To get started today, contact a local attorney who can assist you with your matter. The article below will lay the basic foundation on the process of perfecting service of a divorce case on your spouse by publication. See O.C.G.A. § 9-11-4, Commencement of Action and Service.
Common Types of Service in Georgia
Under Georgia law, 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. However, this typically has to be done by a sheriff’s deputy or an approved private process server. However, when the service is complete, an affidavit may be submitted and filed with the court to verify the completion of the service.
In many cases, the defendant spouse will agree to acknowledge receiving service of a copy of the Summons, Complaint for Divorce and related documents. This can be done by the defendant spouse signing in the presence of a notary a document commonly referred to as an Acknowledgment of Service. By acknowledging the summons receipt, the plaintiff can avoid the cost of hiring a process server or paying the fee required for a sheriff’s deputy for service. And the defendant, the potential embarrassment of being served at their home, at their workplace, or other public location is eliminated. Out of all the service methods, the defendant signing an Acknowledgement of Service form in the presence of a notary and filing it with the superior court clerk is usually the best way to perfect service.
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, divorce by publication is the best route.
Process for Filing for Divorce by Publication in Georgia
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 Affidavit of Diligent Search, which are notarized statements 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 (4) times within the sixty (60) days period, as long as the publication is seven (7) days apart. The publication will be filed in the county where the divorce case is filed. The newspaper that the publication is filed has to be the designated “Legal Organ” for the county. See O.C.G.A. § 9-13-142.
Furthermore, the 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 the Thorpe case, the respondent was intentionally hiding, which prompted the court to grant an order that the service be made by the publication of the Summons.
The missing spouse will get one week after the last publication of notice to respond. More specifically, the defendant (missing spouse) will then have 60 days from the first date of the publication by the newspaper to file a response to the divorce if they wants to contest the divorce case. Failure to respond will result in the court classifying the divorce under uncontested category. You will get an opportunity, if interested, to schedule a hearing to finalize the action. The Court Clerk will send the notice to the newspaper where the publication is put, but you will have to pay the cost. The usual cost of the publication is usually no more than one hundred dollars ($100) in addition to the court’s divorce filing fee. The whole process will take at least three (3) to four (4) months to complete. In a “divorce / service by publication action” the court will usually also grant the plaintiff child custody if he or she already has physical custody of the child. However, the court will not usually grant any child support or alimony, and may be reluctant to make any final decisions about the division of property and debts. It has been our experience that this is not a significant problem in most cases, but it something that should be considered early in the case.
Documents required in the 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
- Domestic Relations Financial Affidavit
- Affidavit of Diligent Search
- Affidavit of Attempted Service
- Affidavit of Publication
- Notice of Publication
- Order of Publication Return of Service Order Perfecting Service
- Child Support Worksheet (even if not an issue, or can be granted)
- Report of Divorce, Annulment or Dissolution of Marriage
- Domestic Relations Case Filing Information Form
- Domestic Relations Case Final Disposition Information Form
- Standing Orders (varies by county)
- Disclosure Forms (varies by county)
- Proposed Final Judgment and Decree of Divorce
Determining the Proper Venue when the Spouse is Missing
Sometimes it can be hard to determine the proper venue when the spouse is missing. Generally, under Georgia law, the divorce cases should be filed in the Superior Court of the County in which a defendant resides. However, if the defendant is a non-resident or cannot be located in the State of Georgia, the proper venue is in the Superior Court of the county where the plaintiff resides. In the vast majority of Georgia divorce cases involving “service by publication” the cases are filed in the county the plaintiff resides, no matter where the defendant is believed to be living or hiding.
Obtaining Legal Assistance with your Georgia Divorce Case
Divorce in itself can be a very stressful process. On top of that when one spouse is missing, things do not get any better without action. Fortunately, you do not have to go through this alone. If you cannot locate your spouse and you have exercised due diligence in locating your spouse, then seek help immediately. Our qualified attorneys have assisted clients with a similar situation like yours. Call us at 770-609-1247 to speak with one of our experienced divorce attorneys. Contact >