What Is Service by Publication?
We frequently have divorce
clients who are separated and claim they do not have their spouse's current address. Although Georgia law requires that a
defendant be personally served, if a party cannot be found, then courts can allow
service by "publication." This consists
of running a notice in the legal news in the county where the case is
filed. The notice names the other party,
contains the case number and filing date, and requests that the missing party
file a response within 60 days.
Prior to serving by publication,
courts require that the filing party exercise "due diligence" to locate the
other party. This means that the filing
party must exhaust every effort possible to find the opposing party and personally
serve them. A recent Georgia Court of
Appeals decision provides additional guidance on steps a party should under the
"due diligence" requirement.
In Kazen v. Kazen, the
Court of Appeals reversed a trial court's refusal to set aside a final judgment
entered in a divorce case where the husband served the wife by
publication. The parties lived in
Georgia, but the wife had returned to South Korea. Husband filed for divorce and sought
permission to serve the wife by publication.
The trial allowed service by publication based upon the husband's
attorney's affidavit stating that husband had performed internet and general
investigative searches and asked the parties' son for the wife's address in
South Korea. When the wife failed to
appear at the final hearing, the trial court granted the divorce, awarded the
husband all marital home and other property, and awarded neither party
alimony. Five months later, the wife
moved to set aside the final judgment claiming that the husband failed to
exercise "due diligence" to locate and personally serve her.
The wife appealed and the Court
of Appeals reversed, finding that the husband failed to exercise "due
diligence." The Court noted that the
husband had the wife's email address but did not email her about the
divorce. He did not contact local law
enforcement in Korea to try to locate his wife; he knew the wife's friend from
church who had the wife's contact information but did ask not for it; and he had letters
from the wife's family with Korean addresses but failed to have those
translated. Their son also testified
that he would have given the wife's address to the husband if husband had said
he was filing for divorce.
The foregoing facts led the Court
of Appeals to conclude that husband had not exercised "due diligence" to find
the wife, and it reversed the trial court's denial of wife's motion to set
aside the divorce final judgment.
So, what can we learn from Kazen? Spouses filing for divorce must make every
effort to find an absentee spouse, which means calling them, emailing them,
contacting friends, contacting relatives, contacting law enforcement if
available, contacting anyone who might have information about their
whereabouts. Failing to do so may result
in the trial court setting aside your divorce final judgment if it was obtained
after service by publication.