How To Get Divorced When You Can’t Locate Your Spouse: Alternative Service of Process

Alternative Service of Process

Alternative Service of Process in DivorceIn general:  every party has the right to notification of a divorce being filed against him/her requiring “Service”.  This is called “Service of Process in a Divorce”.  Each state has its own service of process requirements in a divorce.  Typically when a spouse cannot be located, the filing party must be a legal resident in the city/county and state for the minimum required time to file in that state. When you can’t locate your spouse to serve him/her with the divorce complaint, you can serve the other party by what is call, “alternative service of process.” This is an alternative procedure that is used when your spouse cannot be located.

  • Often you may serve a spouse you cannot locate by publication or posting where the spouse last resided.
  • Keep in mind any time frames that must be met for the alternative service to be accomplished (such as how long a Summons may be good for, how long or how often a Notice would need to be posted or published)
  • Reasonable efforts must be made to locate the spouse (due diligence) and proof of this must usually be provided to the Court (typically by Affidavit detailing the steps taken to locate the spouse).
  • In general,  if the spouse is unable to be located, there may be some issues that the Court isn’t able to fully decide without the other party’s acknowledgment of the matter and/or participation (such as support, property, etc.)

Additional State Specific Resources

Alabama –  An Alabama attorney site with some information on the process and publication of notice in the newspaper for some circumstances (John A. McBrayer).

California –  Statutory Law for Service: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=415.10-415.95

District of Columbia –  the DC Bar has a pamphlet “Help Yourself – Serving Court Papers in D.C. – Divorce and Custody Cases) (AND) Statutory Law for Service: http://www.law.cornell.edu/rules/frcp/rule_4

Florida –  AVVO includes FL specific details on the topic http://www.avvo.com/legal-answers/can-i-get-a-divorce-if-i-can-t-locate-my-spouse-wh-276471.html (AND) Statutory Law for Service: FL Rules of Civil Procedure (also includes form of Affidavit of Diligent Search and Inquiry, etc.) http://www.floridabar.org/TFB/TFBResources.nsf/0/10C69DF6FF15185085256B29004BF823/$FILE/Civil.pdf

Georgia –  GA Legal Aid site (I Have Not Seen My Spouse For Years and I Do Not Know Where My Spouse Is. Can I Still Get a Divorce?) http://www.georgialegalaid.org/resource/how-to-get-a-divorce?ref=kif6M  (AND) LegalZoom – this topic is related to GA, and also has some decent general information http://info.legalzoom.com/divorce-dont-haralson-county-ga-21980.html (AND) from a GA attorney site Rhonda Blackwell Siler – Georgia Uncontested Divorce Online http://www.georgiauncontesteddivorceonline.com/pages/content/5695 Statutory Law for Service: GA Code Title 9 (9-11-4. Process) http://www.lexisnexis.com/hottopics/gacode/

Iowa –  Iowa Courts Pro Se Instructions including instructions on Service where the location of the spouse is not known http://www.iowacourts.gov/wfdata/files/RepresentingYourself/GUIDE-DivorceForms-nokids(02202012).pdf Statutory Law for Service: per “served.com” http://served.com/ia.asp

Massachusetts –  Law Office of Richard B. Kell (attorney website) – this is related to MA, but also has general info on obtaining service of process on absent spouse http://www.massachusetts-familylaw.com/uncategorized/how-to-divorce-a-missing-spouse-divorce-in-massachusetts/ (AND) and MA Law Help site link to MA-specific info – http://www.masslegalhelp.org/domestic-violence/wdwgfh12/serving-papers

Maryland  People’s Law Library of MD  See “What Happens if Service is Not Made” topic http://www.peoples-law.org/node/906 (AND) from a MD attorney’s blog Keith Blair Bartnik, PA http://keithblairbartnikpa.blogspot.com/2008/09/divorce-in-maryland-alternative-means.html .

Michigan –  Michigan Legal Help site with explanation of how to serve if do not know location of the spouse  http://michiganlegalhelp.org/self-help-tools/family/how-serve-divorce-papers (AND) Michigan attorney site with info on the entire MI Divorce process, including if there is a “missing spouse” (Scott Marshall Neuman, P.C.) http://www.bestmichiganlawyer.com/divorce/index.htm

North  Carolina  NC Law Help – pro se pamphlet with Qs and As at the beginning – see page 3 “What do I do If I do not know where my spouse is?” http://www.lawhelpnc.org/files/CF76DC62-D528-7183-3117-39472C017826/attachments/38261CCE-A906-AD20-DB75-D161BC78CB08/466451CIU%20Do%20it%20yourself%20packet-LH.pdf  (AND) Coredell l Cordell (an attorney website) – this is related to NC, but has information related to the topic http://www.cordellcordell.com/north-carolina-family-law-articles/175-northcarolina-divorce-questions Statutory Law for Service: Rule 4. Process. http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_1A/GS_1A-1,_Rule_4.html

New Hampshire –  New Hampshire Rules of the Court – Family Division – Domestic Relations – Notice of Legal Actions http://www.courts.state.nh.us/rules/family/fam-2.htm#2.4 (AND) Statutory Law for Service: Chapter 458, Section 9 Venue; Notice http://www.gencourt.state.nh.us/rsa/html/XLIII/458/458-9.htm

New Jersey –  Legal Services of New Jersey – see info beginning on page 57 for steps on serving the Defendant whose address is unknown http://www.lsnjlaw.org/Publications/Pages/Manuals/DivorceGuide.pdf New Jersey – Getting a Divorce in New Jersey When You Can’t Locate Your Spouse.  See also NJ Rules.

New York –  New York –  Getting a Divorce in New York When You Can’t Locate Your Spouse   New York Courts FAQs page – what if I cannot locate my spouse? http://www.nycourts.gov/divorce/info_faqs.shtml  (AND) LawHelp.org http://www.lawhelp.org/documents/514801Service%20By%20Publication%20-%20July%202010.pdf?stateabbrev=/ny/  (AND) info/explanation from RuralLawCenter.org http://www.rurallawcenter.org/docs/Service%20by%20Publication.pdf

Ohio –  Ohio Legal Services pamphlet with related details on current address for spouse not known – beginning on page 7 http://www.ohiolegalservices.org/public/legal_problem/family-law/legal-separation-divorce-and-dissolution/divorce-in-ohio-with-no-children-information-and-forms/divnokids.pdf

Pennsylvania –  If you can’t locate the other spouse for service within 30 days – or 90 if the spouse lives out-of-state – you will need to go back to the Prothonotary and have the complaint reinstated. You then have 30 days to serve the reinstated complaint using one of the four methods described (certified mail, acceptance of service, service by competent adult, or sheriff’s service) –   Statutory Law for Service of Process: http://www.pacode.com/secure/data/231/chapter1930/s1930.4.html

Texas –  Texas- How To Get Service of Process Over a Spouse That You Cannot Locate in Texas.  See Also : Statutory Law for Citation by Publication: http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.6.htm#6.409  and additional information from a TX attorney site (Law Offices of Thomas P. Jackson) http://www.dfwlawyer.com/Filing_for_Divorce.aspx#Citation_and_Service

Virginia –  VA Legal Aid manual on pro se divorce – see information beginning on page 3 http://www.valegalaid.org/files/E095B726-FCD8-81C1-17DC-A16C7ED73FFF/attachments/399EA16F-F982-45A6-8C41-F6ACF09F0420/divorce-simple.pdf –  and VA attorney site that offers divorce by publication in VA (Michael Ephraim) http://www.ephraimlaw.com/publication.php  and  Statutory law for Service of Process: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-296  / http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-320 – Statutory law for Order of Publication: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-104

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New York No-Fault Divorce

New York No-Fault Divorce is based on “Irretrievable Breakdown” of the marriage.

NY no-fault divorce is here.

New York no-fault divorce is finally here.

New York is one of the last states to pass a no-fault divorce law.  As of August  15, 2010, New Yorkers have the option of filing for a no-fault divorce. New York no-fault divorce has arrived.

Before 2010, New York granted divorces only on a fault ground or you could enter into a New York Marital Separation Agreement, file it with the court, and the wait for one year, after which the parties could get a divorce.

New York still retains fault grounds for divorce. The fault grounds for  divorce in New York are:

  • Cruel and inhuman treatment
  • Abandonment for a continuous period of one year or more
  • Imprisonment for more than three years subsequent to the marriage
  • Adultery
  • Conversion of a separation judgment
  • Conversion of a written and acknowledged separation agreement after living separate and apart for more than one year

New York no-fault divorce is based on Irretrievable breakdown of the marriage.

The new New York ground for no-fault divorce is called “Irretrievable Breakdown” of the marriage. This is the same as a “no-fault” divorce. “Irretrievable breakdown” is defined in the statute as:

  • The relationship between husband and wife has broken down irretrievably for a period of at least six months (DRL §170.7)

The new ground reduces the waiting period for a New York no-fault divorce to  six months.

If the parties agree on all of the issues, which can result from the execution of a Marital Separation Agreement, the parties have a “New York uncontested divorce”.  An uncontested divorce in New York can be granted if the defendant waives the right to answer, but the plaintiff must prove the allegations that the divorce is irretrievably broken by either affidavit or appearance at a hearing where testimony is given.

You have choices in filing your New York no fault divorce in terms of keeping your legal costs reasonable. If you enter into a Marital Separation Agreement your divorce becomes “uncontested” and the filing of the divorce is straight forward with a minimal amount of legal procedures. If you think you need a lawyer, you now can purchase legal forms bundled with legal advice from a virtual, on-line law firm. The legal fee is often less than if you were to go to a full service divorce attorney.

A network of virtual law firms

A network of virtual law firms

A list of virtual law firms in New York can be found here at www.mylawyer.com.

Another alternative is to purchase legal forms. Legalforms are available foor the New York court site for free. Click here for free legal forms from the NY Court Site. These forms are not interactive and either in Adobe  .PDF or MS Word format. They can be difficult and complex to complete.

For an alternative to the court site,  try our smart and interactive forms, which include help screens, and which you can complete within your web browser here . These forms are instantly available.

Our site also offers paralegal prepared legal forms, however your best value is to purchase the legal forms package only, as none of the legal document preparation web sites can give legal advice because they are not law firms. If you feel challenged by completing legal forms online, then consider our document preparation service, but be aware that what you get is the same product as our smart legal forms web service.

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Texas Divorce Forms being Considered by Texas Court

Texas Divorce FormsStandardized Divorce Forms For Texas

The Texas Supreme Court is considering publishing a set of standardized Texas divorce forms to help “pro se” litigants represent themselves in their own uncontested divorces. Texas is not alone in the volume of self-represented litigants in divorce and family law matters – a trend that is propelled by the high cost of legal fees. Texas is, however, behind other states in responding to the needs of “pro se” litigants. Other states such as Florida and Maryland have published standardized forms in family law actions for years.

The Texas Bar is opposed to the publication of these forms, but the Court is moving ahead with the project despite the Bar’s opposition. The Bar’s position is that every one needs to be represented by an attorney. This is the State Bar that famously opposed the publication of self-help law books and legal software on the theory that these publications some how constituted the practice of law. The Bar won a case against  Quicken Family Lawyer on this theory that legal software is the equivalent of the practice of law.

Subsequently the Texas legislature passed an exception to the definition of the practice of law in the State of Texas to make clear that the distribution of legal software does not constitute the practice of law.

It is the organized bar’s opposition to programs that are designed to increase access to the legal system for people who cannot afford already high legal fees that gives the legal profession a bad name. Lack of competition stifles innovation and access to the legal system.

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Maryland Simplifies No-Fault Divorce Law

Maryland Simplifies No-Fault Divorce LawMaryland has simplified its no-fault divorce law as of October 1, 2011.  Previously spouses could get divorced by voluntary agreement after a 12 month separation. If the agreement was not voluntary, the waiting period has always been two years.  Now in Maryland, there is no requirement that the parties voluntarily agree to get a divorce at the end of the 12 month waiting period. The “voluntary” ground has been eliminated.  All that is required is separation for a 12 month period. You now can get a divorce based on a one year separation  in Maryland.

Requirements for a No-Fault Divorce in Maryland

In order to qualify, you and your spouse must have lived apart from each other for at least
12 months without sexual intercourse with each other and there is no reasonable hope of getting back together.

This means that during the last twelve months, if you and your spouse lived together at all, or if you have had sexual intercourse with your spouse during that time, or if you spent even one night under the same roof, you cannot get an absolute divorce based on a 12-month separation. (For example, if you have been separated from your spouse for 12 months, but one night six (6) months ago you had sexual intercourse with your spouse, then you have only been separated for six (6) months.)

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Uncontested Divorce is the Way To Go

Uncontested Divorce

Uncontested Divorce

An Uncontested Divorce is the Way to Go

We know from experience that many couples can handle their own, no-fault, uncontested divorce maintaining control over their divorce action. Since 1998, we have helped tens of thousands of couples do their own divorce through our network of Divorce Form Web Sites

The lowest cost way for you to get a divorce is to represent yourself in your own divorce action. If you need legal advice, you are better off purchasing legal advice by the question from a law firm that specializes in divorce and family matters.There are many law firms that now offer what is call “unbundled” or “limited” legal services over the Internet that will sell legal advice by the question.

If there are only one or two issues that divide you and your spouse try to resolve these issues in mediation. The cost of a mediation is usually between between $500.00 and $1,000. But this is much less than paying thousands of dollars in legal fees.  Once all of your issues are resolved you can enter into a Marital Separation Agreement. This makes your divorce an “uncontested divorce.”

Once your divorce becomes uncontested, it is simply a matter of processing the paperwork. An uncontested divorce hearing  usually lasts no more than an hour. In some states a hearing is not even  necessary.

Your Best Value

To purchase state specific legal forms, go to an automated legal forms website where you have a choice between purchasing either forms with specific instructions for a low price. ($39.00 for divorce forms). Or you have another choice which is to purchase legal forms which are “prepared” by a paralegal or legal technician.  The reality is that the legal forms are identical to forms prepared by a paralegal. A paralegal cannot give you any legal advice. Thus your best value is either to purchase forms only. Another alternative  is to purchase legal forms bundled with legal advice from an attorney for the same price you would pay if you purchased a document preparation service.  This is your best value.

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New Maryland Child Support Law – October 1, 2010

New Maryland Child Support LawNew Maryland Child Support Law

Maryland has a new child support law, which went into effect on October 1, 2010. The new Maryland Child Support Law will make collection of child support by the receiving party more efficient and effective.

New Requirements of Maryland Child Support Law

The last revision was 22 years ago.  Here are some important revisions in the new law:

  • The new Maryland child support law applies to child support orders entered after Oct. 1, 2010.
  • The schedule of basic child support obligations will be adjusted upward to account for increases in the cost of living and inflation.
  • The schedule of basic child support obligations will be expanded to include parents with combined adjusted actual incomes of up to $15,000 per month (or $180,000 per year). This is a considerable increase from the current guidelines, which are only used when the parents have a combined adjusted actual income of up to $10,000 per month (or $120,000 per year).
  • The new Maryland child support law presumes that the guidelines provide the correct amount of child support to be awarded.  That presumption may be rebutted with evidence demonstrating that the application of the guidelines in a particular case would be unjust or inappropriate.

Modification of Child Support

In order to change a child support order, a party still has to show a “material change in circumstances.” That “material change” must be relevant to the level of support a child is actually receiving, and of sufficient magnitude to justify judicial modification of the support order.  Examples of a “material change in circumstances” may include, but are not limited to:

  • a significant increase or decrease in either parent’s income, usually at least a 35% change in income;
  • a significant increase in the child(ren)’s expenses, which relate to their financial, medical, psychological or educational needs; or
  • a significant change in the number of overnights per year that the child(ren) spend with each parent. If, after October 1, 2010, the court finds that modification is appropriate, then the modified order will be governed by the new guidelines.
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