Ex Parte Divorce
An ex parte divorce is a "divorce proceeding in which only one spouse participates or appears in court." Black's Law Dictionary (8th ed. 2004). Ex parte divorces are common in situations where the spouses are residents of different states, where one spouse is located outside the spouses' state of residence, or where one spouse cannot be found.
Although a court may issue a divorce decree in a proceeding in which only one spouse participates or appears, the court's decree is only valid if it had personal jurisdiction over both spouses.
The issue of personal jurisdiction in an ex parte divorce often arises when the out-of-state spouse refuses to consent to the court's jurisdiction. In such situations, a court may be able to obtain personal jurisdiction over the out-of-state spouse through application of its long-arm statute. A long-arm statute is a law "providing for jurisdiction over a nonresident defendant who has had contacts with the territory where the statute is in effect." Black's Law Dictionary (8th ed. 2004).
The requirements for long-arm jurisdiction and the restrictiveness of those requirements varies by state. Some states will only exercise jurisdiction over the out-of-state spouse if the spouses' marital domicile was located in the state when particular actions occurred. For example, California's long-arm statute applies if the marital domicile was located within its borders when the defendant-spouse left the plaintiff-spouse while Idaho's long-arm statute applies if the marital domicile was located within its borders when any action giving rise to divorce occurred.
Service By Publication
When one party cannot be found, the court cannot obtain jurisdiction over that party by means of personal service. However, in such situations, the court may be able to use service by publication as a substitute for personal service to obtain jurisdiction over the missing party.
If the spouse who is seeking a divorce is a resident of the state, service by publication is generally sufficient to obtain personal jurisdiction over a spouse who is a resident of the state but currently outside the state or a spouse who resides outside the state. Service by publication is also generally sufficient in cases where the other spouse's address or residence is unknown or the other spouse intentionally keeps himself or herself concealed to avoid personal service.
Most states have procedural requirements that must be met before service by publication can be authorized. Additionally, a court may only authorize service by publication upon a showing of due diligence by the spouse seeking the divorce to locate the missing or out-of-state spouse. Effective service by publication requires strict compliance with the laws and rules authorizing constructive service, and invalid service by publication cannot be fixed even if actual notice is given. An attorney who is licensed in your jurisdiction can help to ensure that your state's service by publication requirements are followed. Contact our firm today to schedule a consultation with a divorce attorney who can provide a clear explanation of your legal rights and options.
Service By Publication Requirements in Divorce
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