By James Jennings
So you find yourself in a situation where you have filed for divorce – or some other legal action – and you husband or wife has disappeared or you haven’t seen them in years. This actually is a lot more common than you would think. So now what?
I remember a few years back an elderly gentleman came into my office looking to divorce his wife. You see he married her in 1942 in Phoenix during World War II. He went on to further explain that they had only spent one night together before he shipped out to the Europe to fight in that war. Unfortunately he had not seen her since. When he came back stateside she was nowhere to be found. In essence he had not had contact with her for more than 71 years. He realized that he had one-foot in the grave so to speak and he did not want her to have a legal claim to his estate should he pass. He wanted to have his children from another marriage to get his property now that his other wife had died some five years prior to him coming in to see me for a divorce. I’m not even going to get into how his second marriage wasn’t legal because he didn’t divorce his first wife – can anyone say bigamy- but suffice it to say he needed to divorce his first wife.
Arizona Rules of Family Law Procedure (ARFLP) Rule 41(B) requires all legal documents to be served on the opposing party – in a divorce that would be the Respondent – so that they have notice of the divorce and what they can do to be heard if they want to contest the terms of that divorce. Fortunately, there is a way to obtain a divorce when you have a missing spouse. The same rule in Sub-part M states that if you do not know the residence of the other party you can serve them legal notice through the newspaper.
“ … where the person to be served is one whose residence is unknown to the party seeking service but whose last known residence address was within the state, or has avoided service of process, and service by publication is the best means practicable under the circumstances for providing notice of the institution of the action, then service may be made by publication… ”
Sub-part M goes on to further state how to accomplish this. First, you must run the legal notice, that being the summons in a newspaper of general circulation once a week for four weeks.
“Such service shall be made by publication of the summons, and of a statement as to the manner in which a copy of the pleading being served may be obtained, at least once a week for four successive weeks (1) in a newspaper...”
And this notification must run in the county where the case is filed and the county of last know residence of the person you are trying to serve notice to.
“…a newspaper published in the county where the action is pending, and (2) in a newspaper published in the county of the last known residence of the person to be served, if different from the county where the action is pending.”
So in the above example of the World War II veteran bigamist, since he filed in Maricopa County and his wife’s last know residence was Maricopa County the publication would only run in Maricopa County. So he only has to pay for publicizing in just one county, however, if she had live in Navajo County and he filed in Maricopa then he would have to publicize in both counties. (Rule 42 has information about what to do if they reside outside of Arizona’s jurisdiction.)
It also important to note that if you choose this method of service you must have done everything possible to find your missing wife or husband. The court considers this sort of legal notice as a “method of last resort”. You just cannot run a legal notice in the newspaper because you want to avoid serving you husband or wife by another method.
Most judges demand that you do your due diligence first. Judges usually want you to do the following first BEFORE you use the newspaper for service:
- Contact family and friends of your spouse and ask if they know where they are;
- Contact the military and see if they are in the armed services;
- Contact the Arizona Department of Corrections and see if they have been incarcerated;
- Do an internet search and see if they turn up;
- And finally, do a phone directory search.
If all this fails to bear fruit then most judges will be satisfied that you really did try to find your spouse and you have no other alternative but to serve notice through the newspaper.
Now there are some pros and cons to doing a “newspaper divorce”.
Pros of a Newspaper Divorce
The court will grant you a divorce and you can move on with your life. Get remarried, buy a house, win the lottery, etc.
Cons of a Newspaper Divorce
A newspaper divorce is like the Sword of Damocles. Your husband or wife can come back years later and have the case re-opened because they were not “personally” served with divorce papers.
Also, the judge will not order anything to do with the division of property (real or personal), debts, retirement, alimony (spousal maintenance), child support, child custody (legal decision making authority), parenting time or any other issue other than giving you back your maiden name or restoring any name you ever legally had prior to your current marriage.
This too is all addressed in ARFLP Rule 41(M)
“Service by publication is not sufficient to confer jurisdiction upon the court to determine issues of paternity, child support, spousal maintenance, division of marital property, or any other issue requiring personal jurisdiction over a party.”
Therefore, if you ever find this person and these issues are important to you then you have to re-open the case and address theses issues.
Finally, newspaper divorces take around four months to complete from beginning to end if they are uncontested. That’s a full thirty days longer than the typical divorce that is served by a different method.
The good news is Discount Divorce & Bankruptcy is extremely experienced in handling newspaper divorces. We have done thousands in the past twenty years.
We will manage all aspects from setting up the publication in a newspaper that will be accepted by the Court as a proper newspaper. We will prepare all required affidavits that have to filed and sent to the judge. And finally, we will set the required hearing up with appropriate judicial officer so that your divorce will be finalized.
I always feel a little bit sorry for people that try to do a newspaper divorce without assistance of a professional like us. It’s sort of like trying to do surgery on your dog without a veterinarian. You’d better dig a hole first because the chances of success are slim. If your intend to serve notice by publication and you want it done right the first time call us.
If you have any questions regarding a specific legal matter or legal strategy you should contact an attorney for legal advice. If you would like to get started on a family law or bankruptcy case call us today, 602-896-9020, email us at firstname.lastname@example.org, or visit our website at DiscountDivorcePro.com.