It may be the case that when your divorce attorney in Montgomery, or wherever you are living, files for divorce your soon to be former spouse is nowhere to be found, likely because they are hiding from the divorce petition. This can make things difficult for you, since both parties should presumably be on the same page. At the same time, there is a process by which your divorce can continue, and it is called a divorce by publication or default divorce.
In Alabama, divorce begins with the filing of a divorce complaint, accompanied by necessary filing and court fees in the county with which you reside. Once this is completed, a notice is filed, meaning that the filing party must serve the other party with the divorce papers. The other party then has thirty days to respond. Without a notice, no divorce of any kind can move forward.
A default divorce happens when the petitioner, the person filing for divorce, cannot locate their spouse for the purpose of serving the notice or complaint filing. If they do not respond within or after the 30-day period, then it will move to a default divorce.
Requirements for a Default Divorce
Unfortunately, a default divorce requires some legwork on your part. The judge will expect that you put in a reasonable amount of effort to find your spouse. This can take the form of a publication or posting to find your spouse. In your file up motion, you will need to lay out the steps you took in order to locate them, including the places you went, people you contacted, and what you did or did not find out. Say, for example, your spouse has moved away and did not leave a forwarding address. If you have an idea of what neighborhood they live in you would start your search there. It could also be the case that the spouse is simply hiding to avoid the inevitability of the divorce. In either case, you might not know with 100% certainty where you would need to start, but you will have to start somewhere. More often than not this involves putting an ad in the local newspaper that services the county you suspect your spouse is dwelling in. Save all copies of your paperwork, for your records and your own benefit.
As you can tell, the responsibility is on you to keep track of their progress. This may seem unfair, but that is the nature of this type of divorce. At this stage, it may be worth bringing in, or continuing to work with, an experienced divorce attorney in Decatur to assist you with the documentation that is required. They can also be useful with making sure you meet all of the court’s requirements.
Filing for a Default Divorce Once You Have Completed the Legwork
At this point, you should have been publishing notices once a week for four weeks. The court will acknowledge your efforts and “service” will be considered complete upon the completion of your final publication. Additionally, the newspaper you have been working with will have to file an affidavit showing that the notice has been published with them. 30 days after the last publication date, you will file an action pointing out that the other party is in default, and the court will set up a hearing date for the divorce. In all, this process will take roughly four months.
A default divorce will likely not be taking place if you are seeking an uncontested divorce – where you both have agreed on items like division of property and assets, child custody, and so forth. You may be awarded child custody with a default divorce, but some of the other issues like child support and division of property will be more difficult for the court to process. That is, unfortunately, the limitation of what the court can do based on the fact that your spouse is being uncooperative.
Attorney Steven A. Harris regularly blogs in the areas of family law, bankruptcy, probate, and real estate closings on this website. Mr. Harris tries to provide informative information to the public in easily digestible formats. Hopefully you enjoyed this article and feel free to supply feedback. We appreciate our readers & love to hear from you!