Divorce is hard enough in normal circumstances, but when you don’t know where your soon-to-be ex is living, it’s even harder. You may be surprised, too, to find out how often it happens!
The biggest issue associated with not knowing where he is has to do with service of process. Basically, it’s a Constitutional requirement. When a lawsuit is filed against you, you have a right to know that the suit has been filed and given an opportunity to respond. A divorce is a lawsuit! Because we divide the assets, liabilities, and responsibilities of the marriage between the two of you, he has a right to know about it and to have an opportunity to be heard.
What is service of process?
When a plaintiff files a lawsuit, the defendant is served. A process server is someone who is over 18 and not a party to the lawsuit; it can technically be anyone, but usually it is either a sheriff or a private process server (an individual who is in the business of finding defendants and formally serving them).
Service can be served either personally – delivered to the named defendant and handed to him – or posted – meaning that it was affixed to the front door of the place where he’s currently living. Personal service is more legitimate than posted service, because there’s a possibility that posted service will not notify the defendant. Still, personal service is not always possible.
If you don’t know where he is, though, you can’t arrange for service of process – whether personal or posted. That’s a problem.
When you don’t know where he is, you can’t have him served.
The case can’t move forward without service of process. Like I said, it’s a Constitutional requirement – so it’s a pretty big deal.
It’s a challenge because there’s tension on both sides. He may want to duck service; you may want to not put in very much effort because, if he doesn’t show, you have a greater likelihood of getting what you ask for (with no input from him). So, the judge will look pretty critically at your attempts to have him served because it is her (the judge’s) job to make sure that all the right steps have been followed and that everyone’s rights have been protected.
You don’t necessarily have to know where he’s living; if you know where he works, you can have him served there (though you’d have to do personal service, rather than posted). But if you have no idea at all, things can get tricky fast.
Even if you DO know where he is, service is harder outside of the state or country.
Outside of Virginia, service of process is also additionally challenging. When it’s more challenging, it’s also more expensive – and can also make it more time consuming as well.
Can’t I do service by publication?
In the olden days, service by publication – basically, notice in the newspaper that a lawsuit has been filed – was how you reached defendants whose address you didn’t know. After a certain period of time, he either knew or should have known, and then the case could move forward.
Understandably, service by publication is sort of out of date. For one thing, who even reads a newspaper? And, if you do, WHICH newspaper? It doesn’t seem reasonably calculated to let a defendant know that a lawsuit has been filed. Right? I mean, how often do YOU read The New York Times – or, worse, some random local publication – from cover to cover? That’s just not how anyone navigates the world anymore. And, unfortunately, we haven’t evolved to the point that you can take out an ad on social media and that serves as notice by publication! (Kidding, kidding. Oh, I mean, maybe I should clarify – I’m kidding that this would be a good idea; I’m not kidding that it’s not allowed.)
If you don’t know where your soon-to-be ex is located, you should talk to an attorney about what information you do have and what options might be available to you. Though it might seem unfair, it’s probable that your case will cost more because service is so tricky. It’s also possible that it will take far longer than other cases. These are just unfortunate realities you should be prepared for. I’m not saying it’s fair, but it’s also not something that an attorney – even the best attorney in the world – can easily sidestep. After all, we’re talking about Constitutional rights here!
In family law we don’t have to talk about the Constitution very often, which is too bad because I did really well in Constitutional Law in law school. But, alas! Divorce law is very, very state specific so, most of the time, we’re referencing state-specific laws, which can vary dramatically from one state to the next. In this case, though, it’s not a quirky Virginia thing, like the fact that adultery is still a crime.
You’ll have to get him served. Hopefully, he’ll cooperate – because, ultimately, it’s not like he’s going to have that much choice. Divorce is going to happen and one party who doesn’t want it can only slow it down; they can’t stop the process entirely.
I’m sorry that this is happening to you. I’m sure that it’s upsetting and overwhelming to find out that you have this additional logistical hurdle on top of everything else that you’re dealing with. You’ll almost certainly need an attorney to help.
For more information, to request a copy of our divorce book for Virginia women, or to attend an upcoming monthly divorce seminar, give our office a call at 757-425-5200.