Proper Service Divorce Law in Marietta

Divorce Requires Proper Service

Often, I am in a courtroom and people without lawyers stand up, ready to get divorced. The judge reviews the file only to ask the party if there has been proper service.

The individual looks around the crowded courtroom and asks what that means. Then, they tell the court that I cannot find him or her, I have been unable to get them the complaint. The judge explains that there must be proper service of a lawsuit for the process to move forward. In the end, the court cannot proceed and the action is dismissed or continued for service, and the individual leaves the court wondering if they will ever get divorced.

The constitution and all state constitutions provide for due process of lawsuits. This means that you cannot simply file and go to court, receive a judgment, and the person who you are suing never realized there was an action against them. There must be proper service of a lawsuit in Georgia. The statutes are very clear how this must take place. The usual and best process is to have the sheriff or an appointed process server to physically place the documents in the hands of the defendant. If this is not possible in the hands of someone of suitable age who confirms the individual lives in the home served. After this takes place they will file and affidavit of service confirming that this took place and regardless of whether they are in court, service has occurred and the matter can move forward.

However, sometimes this is impossible. The parties have had no contact for years, one party leaves the country and it becomes impossible to locate the other party. If this is the case Georgia allows for service by publication. This allows a party to file a motion with affidavits asking the court to waive in person service and proceed with service by publication. This is a very serious request and the court weighs the reasons and the affidavits heavily. You must state in your request and affidavits the attempts you have made at service and locating this individual. If the court finds it is impossible to locate this person they will grant the order and you must publish this in a local paper for four weeks after. Once this process is complete and the necessary notices of publications are filed, the court will allow you to proceed.

It is important to realize that certain issues of support and custody if the children are not in the courts jurisdiction will not be decided under service by publication.

For more information, feel free to call me at (770)-285-0331 or request an appointment online.

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