If you are considering a divorce by publication because you don’t know your spouse’s whereabouts, learn all of your options in this article.
You have not seen nor had contact with your spouse in years. You have now made the decision to legally divorce that spouse. What do you need to do to get a divorce by publication?
Here is a scenario: You dated Joey who was your “soul mate” during high school. The two of you plan out your future and at age eighteen, you get married. Too soon, Joey begins to stray and spends much more time at bars with his friends than he does with you and has even found other lovers by the time he reaches twenty-one.
Thankfully, the two of you have no children and decide to separate. Joey disappears…ten years later, you have essentially forgotten about Joey. Then Charles enters your life; you, this time, are much more mature and realize what true love is and when Charles asks you to marry him, you automatically say, “Yes.” Then you remember that you never divorced Joey and have absolutely no idea where he is. You are still legally married to Joey and cannot marry Charles. What are your options?
Unfortunately, you cannot simply sign a piece of paper and file it at a courthouse to obtain a divorce by publication. The process is much more complicated. You must take a number of steps and that process can take a while. Most importantly, you should contact a competent family law attorney to ensure you are following the correct procedures.
Your attorney will first file your divorce petition and other documents with the court, and your spouse must be served with the documents. You will then have to make “reasonable efforts” to find him or her. What constitutes a reasonable effort? This would include calling friends and family members of your spouse to inquire as to his or her whereabouts, checking social media websites, hiring a private investigator, conducting a skip trace, and checking public records.
After you have taken as many “reasonable efforts” as possible, you can then move forward with notifying the court that you need to exercise some type of alternative service to serve your spouse. The Court will rule on your motion and usually provide you with some directives on how to service your spouse. In Alabama, the Court will, most likely, allow you to serve the spouse by publication.
An Alabama Court will require an affidavit from you “averring that service of summons or other process cannot be made either because the residence is unknown to the affiant and cannot with reasonable diligence be ascertained, or the identity of the defendant is unknown, or, the resident defendant has been absent for more than thirty (30) days since the filing of the complaint, or, the defendant avoids service, averring facts showing such avoidance.”
To be eligible for a divorce by publication, you are required to complete and submit an Affidavit of Diligent Search to the Court. In this document, you should clearly outline all of the actions you have previously attempted to locate your spouse—essentially, you must prove to the Court that you cannot find him or her.
With the Court’s permission, you can then proceed with filing for divorce by publication. The clerk of the Court directs that the service of notice be made by publication in a newspaper of general circulation in the county in which the divorce complaint is filed. If no newspaper of general circulation is available in that county, then publication should be made in a newspaper of general circulation in an adjoining Alabama county. Said service must be published once a week for four (4) consecutive weeks. Service to your spouse is considered complete at the date of the last week’s entry of publication. However, please note that this type of service is limited as to what it can legally accomplish. For example, you can be awarded child custody–but not child support.
Furthermore, the Court will not transfer property when your missing spouse is served by publication. Your attorney will review all of the legal ramifications associated with service by publication.
After the last publication notice, your attorney should file an affidavit from the newspaper with the Court proving that the notice was published as directed by law. Thirty days later, your attorney will file a document with the Court noting that your missing spouse is in default for not answering your Petition for Divorce. The Court should then set a hearing to review your case.
Divorce by publication in Alabama is not a swift procedure. From start to finish, the process takes approximately four (4) months, at best. Hiring a compete family attorney is the key to the success of this endeavor.