What happens if you haven’t seen or spoken to your spouse and want to divorce? This is more common than you think! There is a solution. Here’s what you need to know:
What is “Service” in legal terms?
In Florida, notifying someone that they have been sued in a civil lawsuit happens with a legal procedure known as “service of process.” Notice is a right provided in our Constitution, falling under the due process requirement.
Simply put, actual notice of the proceedings must be given to every party to an action, whenever possible. If you do not know where your spouse is residing, you can provide “notice” through constructive service.
When it is necessary to use constructive notice, it must be given in a way that is likely to provide actual notice. That’s when service through publication comes into play.
You can still divorce without knowing where your spouse is, but the Court is limited in what it can rule on:
Service through publication (also called constructive service, and these terms will be used interchangeably) is the method used to provide “notice” to your spouse when you don’t know how to locate them to provide formal (personal) service.
If you use constructive service, the Court can grant only limited. This method is not applicable if you are seeking financial support. Personal service is required before a court can order payment of financial support, such as alimony.
This is a complicated area of the law and you should always try to consult an attorney before using constructive service.
Documents you need:
The following documents are required if you are providing the other spouse/parent notice through publication.
1. Notice of Action:
A Notice of Action may be used to obtain constructive service (also called service by publication) if you do not know where your spouse lives or if your spouse lives outside Florida and you are unable to obtain personal service. Constructive notice will allow the court to dissolve the marriage, but personal service is required before a court can order payment of financial support alimony or costs.
If you are asking the court to decide how real or personal property located in Florida should be divided, the Notice of Action must include a specific description of the property. The legal description of the property can be found in the deed. If you don’t have a copy of the deed, try checking your the Property Appraiser’s website for the county you live in.
Click here for a Notice of Action for Termination of Parental Rights and Stepparent Adoption
2. Affidavit of Diligent Search
When it is necessary to use constructive notice, it must be given in a way that is likely to provide actual notice. You must disclose the last known address of the other party. A last known address cannot be unknown. The Affidavit of Diligent Search includes a checklist of places you can look for information on the location of the other party. It’s not necessary for you to look in all of these places. Courts look for whether they believe a very serious effort to get information about the other party’s location was made, and that you have followed up on any information you received.
Click here for an Affidavit of Diligent Search in Paternity cases.
You can also submit a Driver License Records Request with the Florida Department of Highway Safety and Motor Vehicles.
For more Family Law Forms, visit the Florida Court‘s website for forms approved by the Supreme Court of Florida.
The legal process can get difficult, which is why we always recommend that you seek the assistance of counsel; or at least have a consultation. Schedule a consultation with one of our attorneys today to review the issues of your case, the legal options you may have, and certain rights that pertain to your unique situation.
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