If you do not know the whereabouts of your spouse, it is still possible to proceed with a divorce or family law case. Due process requires that each party in a legal proceeding have notice of any claims asserted against them. If the other party can’t be found, then this due process right can become a major thorn in the side of the party that wants to proceed in court with a legal issue.
“Service of process” is the method by which parties to a case are provided with notice of the legal proceedings. In the case where one of the parties can’t be found, this notice can be provided using “service by publication.” Service by publication is the method of publishing a court order, generally in a local newspaper for a certain period of time, which acts as sufficient notice of the legal proceedings to the party 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 family law case.
First, service by publication is only to be used when one party truly has no way to find the whereabouts of the other spouse. The statute requires that reasonable efforts and diligence have been used without effect to ascertain the location of the party to be served. If these reasonable efforts are made, then the court has the authority to order service by publication against the defendant. If these reasonable efforts are not made, then some other method of service must be used, or the efforts must be made before an order of publication can be issued.
This means that the party seeking a court determination (the plaintiff) must make the efforts that a reasonable person would take to find the whereabouts of the other party (the defendant). These efforts may include: contacting the defendant via telephone, text message, and email; attempting to have the defendant served with legal documents 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 the defendant, 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. From a procedural perspective, the plaintiff must file an affidavit with the court, outlining the defendant’s last known address and the efforts made to find the defendant. The plaintiff must sign this affidavit under oath.
After the Clerk of Court reviews the affidavit and deems it compliant with the statute, the court will then provide the order of publication to whichever newspaper is used for service by publication in that particular jurisdiction. The newspaper will run the order of publication in its print copy for the applicable time period. 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 the applicable time period, it will provide an original certificate of publication to the plaintiff, who will submit the certificate to the court and the defendant will have been served.
Service by publication is not a quick inexpensive method of service. If you cannot locate the defendant in your case and would like to proceed in court, be sure to discuss service by publication with an experienced family law attorney.
Contact a Wayside Legal Family Law Attorney
Wayside Legal LLC is an award-winning law firm located in North Bethesda, Maryland, with years of experience handling family law matters throughout Maryland, D.C., and Virginia. If you are facing a family law issue, contact a Wayside Legal attorney today for a consultation to discuss your specific situation.