What Is Service by Publication?
When you file for a divorce in Georgia you must first file a divorce complaint with the court. In the divorce complaint, you will set forth the basic facts of your marriage and divorce, such as date of marriage, date of separation, the grounds for divorce and prayers for relief. Then, your next step is to serve the complaint – along with the summons – to your spouse. Your divorce case can proceed only after your spouse is served properly with the divorce documents. But what if your spouse has moved out of the state or even out of the country and you have no idea where the spouse went? One way of reaching your spouse in such cases is to make use of “service by publication.” Georgia has its own specific rules regarding how service may be accomplished by publication. Below will give you some idea of service by publication in Georgia.
What Is Service of Process?
Service of process is a legal way by which a plaintiff gives an appropriate notice of the filing of a lawsuit to a defendant. It makes sure that the defendant knows that the plaintiff filed a lawsuit against him or her. Under Georgia law, the plaintiff is required to serve both the summons and complaint upon the defendant personally if he or she is an individual, or upon an registered agent, president, other officer or managing agent if the defendant is a business entity. [O.C.G.A. § 9-11-4(e)(1)]. A “summons” is a legal document that informs a defendant of a lawsuit filed and that requires the defendant to appear in court. Once the plaintiff files a petition in the county’s clerk office, the clerk’s office will usually give the plaintiff a summons. In divorce cases, a plaintiff spouse must serve the summons and complaint on a defendant spouse in order to initiate a case.
Until the defendant has received officially and properly the copy of the summons and complaint, the lawsuit cannot proceed. It is only after proper service of process has been made on a defendant that the court obtains personal jurisdiction over the defendant to impose an enforceable judgment of liability and damages. Without proper service of process, therefore, the court lacks jurisdiction to hear the case and the lawsuit must be dismissed.
Common Types of Service in Georgia
The most common type of service is “personal service.” Personal service is delivering the copy of the summons and complaint directly to the defendant. Pursuant to [O.C.G.A. § 9-11-4(c)], service will be made by sheriff of the county where the lawsuit is brought or where the defendant is found, or by private process server. In a divorce action, you provide the sheriff with your spouse’s address and physical description and pay a small service fee. The sheriff will then go to the address provided to deliver the copy of divorce paperwork to your spouse. If the spouse refuses to answer the door or takes other evasive action and avoids service, you can hire a private individual to track down your spouse and hand him or her the papers. Georgia law requires you to obtain a court approval before you hire such private individual. [O.C.G.A. § 9-11-4(c)].
Although service has to be personal (that is to serve the defendant directly), if the defendant is not home the summons and complaint can be left with someone who lives in the home (a non-party adult or child over the age of 14). This is called “substitute service,” which means that service is made by leaving copies at the defendant’s dwelling house or usual place of abode with a person who is over 14 and resides therein. [O.C.G.A. § 9-11-4(e)(7)] Different jurisdictions allow different types of substitute service. So be sure to check with your local court clerk’s office or an attorney before attempting substitute service.
Often in divorce cases, the defendant spouse may agree to sign a “Acknowledge of Service” form that confirms he or she has received the copy of the summons and complaint and waives further personal service. In this case, you can simply send the summons and complaint together with an Acknowledgment of Service form to your spouse by mail. If your spouse sends the form back to you, you can file it with the court.
Service by Publication in Georgia
Sometimes, however, you cannot locate your spouse because he or she have moved out of the city or state without telling you a forwarding address. Also, in other cases you may not know where your spouse is because you and your spouse has lived apart for a long time without filing for divorce and you have lost contact with your spouse. If you do not know where your spouse lives or work, neither a sheriff nor a private process server will be able to serve the spouse. In these situations, Georgia courts may allow you to complete “service by publication.” By using service by publication, a plaintiff can notify a defendant of a lawsuit by publishing notice in a court-approved newspaper or other publication. Publication satisfies constructive notice to the defendant, meaning that publishing information is sufficient to fulfill the notice requirement and the lawsuit may proceed even where the defendant have not actually received notice.
Pursuant to O.C.G.A. § 9-11-4(f)(1)(A), courts require a plaintiff to attempt “personal service” before allowing service by publication. In addition, the plaintiff must complete and submit an Affidavit of Diligent Search form stating all efforts the plaintiff has made to locate the defendant. If the court is satisfied with the plaintiff’s effort and convinced that the spouse cannot be found, it will issue an Order of Publication authorizing service to be published in the official, legal newspaper. The notice must appear four times within the first 60 days after filing a lawsuit and the publication must be at least seven days apart. [O.C.G.A. § 9-11-4(f)(1)(C)]. The publication is often in the county where the action is filed. The defendant has 60 days to answer the petition.
After the 60 day period, the case can proceed whether or not the defendant has responded. In Georgia, the court can grant a divorce or enforce judgment against the defendant on his or her property situated in Georgia without personal jurisdiction over a defendant (in other words even if the defendant did not respond to service by publication). However, it cannot make any decisions regarding child custody, child support or division of property situated outside of Georgia without personal jurisdiction over the defendant.
You need to properly serve the divorce document to your spouse or otherwise your divorce case can be dismissed for lack of jurisdiction. In most cases, a sheriff or private process server may personally serve your spouse. But in cases where your spouse cannot be located or is missing, Georgia court may allow you to complete service by publication. In order to properly serve your spouse by publication, you must comply with the procedural rules of Georgia. Also, if you later find out where your spouse lives, then you may be required to amend your petition to be served personally on the other side and have that person personally served (by a sheriff) with a copy of your petition. Because service of process directly relates to a court’s jurisdiction and dismissal of your case, be sure to consult with a local attorney.
How to Obtain Help With Your Case
If you are facing divorce and cannot locate your spouse, it is important to speak with an experienced divorce and family law attorney early in the process to narrow down your options. it is possible that serving your spouse by publication will be your best option. Call us today at 770-609-1247 to speak with one of our experienced Georgia divorce and family law attorneys. Contact >>