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Unable to Find Spouse
Even if a spouse seeking a divorce has not seen the other spouse in several years and has absolutely no idea how to locate the other spouse, the spouse seeking a divorce may still obtain a divorce in Georgia. In Georgia, in order to successfully initiate the divorce process, it is necessary for the spouse seeking a divorce to file a Complaint for Divorce. Once the Complaint for Divorce has been filed with the appropriate court, it is then necessary to have the divorce complaint along with certain other legal documents served on or delivered to the other spouse.
The difficulty encountered by individuals seeking to obtain a divorce in Georgia who cannot locate their spouse is that they are unable to successfully serve their spouse with divorce papers, and are thus unable to successfully initiate the divorce proceedings. Although in Georgia, there is a way for individuals who are unable to locate their spouse to successfully initiate divorce proceedings and ultimately obtain a divorce. According to Georgia law concerning the initiation of lawsuits in Georgia, including suits for divorce:
“When the person on whom service is to be made […] cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of the summons, and the fact shall appear, by affidavit, to the satisfaction of the judge or clerk of the court, and it shall appear, either by affidavit or by a verified complaint on file, that a claim exists against the defendant in respect to whom the service is to be made, and that he or she is a necessary or proper party to the action, the judge or clerk may grant an order that the service be made by the publication of summons, provided that when the affidavit is based on the fact that the party on whom service is to be made resides outside the state, and the present address of the party is unknown, it shall be a sufficient showing of such fact if the affiant shall state generally in the affidavit that at a previous time such person resided outside this state in a certain place (naming the place and stating the latest date known to affiant when the party so resided there); that such place is the last place in which the party resided to the knowledge of affiant; that the party no longer resides at the place; that affiant does not know the present place of residence of the party or where the party can be found; and that affiant does not know and has never been informed and has no reason to believe that the party now resides in this state; and, in such case, it shall be presumed that the party still resides and remains outside the state, and the affidavit shall be deemed to be a sufficient showing of due diligence to find the defendant. This Code section shall apply to all manner of civil actions, including those for divorce.”
O.C.G.A. 9-11-4 (f)(1)(a).
What the above cited code section means in essence is that if the spouse seeking the divorce can prove and swear under oath that he or she does not know the current whereabouts of the other spouse and are unable to locate them after trying, then a Judge will sign an order allowing service of process to be made on the defendant spouse via publication. For a discussion concerning service by publication specifically, see are article addressing this process. Generally, to prove to the presiding judge that the defendant spouse cannot be located, the spouse seeking the divorce must either submit an affidavit or verified complaint swearing the defendant spouse’s whereabouts are unknown, that reasonable diligence has been taken to ascertain the whereabouts of the defendant spouse, and identify the last residence of the defendant spouse.
Once service of process has been effectuated by publication, the divorce action may proceed against the absent spouse. However, in such cases, the presiding court may only award a divorce and make a determination concerning child custody. The court may not be able to divide property or award child support or alimony in such matters.