If you do not know the whereabouts of your spouse, it is still possible to proceed with a divorce. Because each party in a divorce must have notice of any claims asserted against them, an absent spouse becomes an issue for purposes of service, which is the process by which parties to a case are provided with notice of the legal proceedings. In these cases, notice can be provided by using “service by publication.” Service by publication is the method of publishing an order, which acts as sufficient notice of the divorce proceedings to the spouse whose location cannot be found.
There are several potential issues with service by publication that you should be aware of if you intend to use this method in your divorce case.
First, service by publication is only to be used when one spouse truly has no way to find the whereabouts of the other spouse. Virginia Code § 8.01-316 requires that “diligence has been used without effect to ascertain the location of the party to be served” in order to have an order of publication entered against a defendant. This means that the party seeking a divorce (the plaintiff) must make the efforts that a reasonable person would take to find the whereabouts of his or her spouse (the defendant). These efforts include but are not limited to: contacting the defendant via telephone, text message, and email; attempting to have the defendant served with divorce pleadings at their last known residential or work address; reaching out to them on Facebook or other social media; searching for the person online; contacting their family and friends, etc. In short, if you have a way to get in touch with your spouse, service by publication will probably not be the proper method of service in your case.
If the plaintiff uses due diligence and still cannot locate the defendant, then the plaintiff may proceed with an order of publication to effectuate service upon the defendant. Procedurally, the plaintiff files an affidavit and order of publication along with the complaint for divorce with the court. The affidavit must include the defendant’s last known residence and the methods by which the plaintiff used due diligence to try to find the defendant. The plaintiff signs this affidavit in the presence of a notary, under oath.
After the Clerk of Court reviews the affidavit and deems it compliant with the Virginia Code, the Clerk then provides the order of publication to whichever newspaper is used for service by publication in that particular county. The newspaper will run the order of publication for four successive weeks. The Clerk of Court will also post the order at the front door of the courthouse and mail the order to the defendant’s last known address. After the newspaper has printed the order of publication for four successive weeks, it will provide an original certificate of publication to the plaintiff, who will submit the certificate to the court along with the final decree of divorce and any other necessary documentation. The plaintiff may then proceed with the divorce as if the defendant has waived the right to any further service or notice.
It is important to note that service by publication cannot be used to avoid the traditional steps of a divorce case. First, the affidavit must be signed by the plaintiff under oath. In addition, Virginia Code Section 8.01-322 permits a defendant against whom service by publication is had to petition the court to have the case reheard within two years of the entry of the final decree of divorce or within one year of service (if served more than one year before the end of the two year period).
Finally, if you intend to use service by publication in your divorce, you should be aware that it is not a quick or inexpensive method of service. At a minimum, it will take fifty days from the entry of the order of publication to complete this step in the divorce process. The cost of service by publication is usually a few hundred dollars.
If you cannot locate your spouse and would like to obtain a divorce, be sure to discuss service by publication with an experienced divorce attorney in your jurisdiction. From offices in Fairfax, Ashburn, Manassas and Fredericksburg, the divorce lawyers at Livesay & Myers, P.C. represent clients across Northern Virginia. Contact us to schedule a consultation today.