My Spouse is Evading Service. Can I Still Get Divorced?
When you decide to get a divorce, your attorney will get the legal documents prepared and filed and have your ex served with them. However, the process can be impeded when your ex decides to avoid receiving notice of the case deliberately. If you are faced with this situation, you may want to know: If my spouse is evading service, can I still get divorced?
Wisconsin Service of the Process
Wisconsin, like most other jurisdictions, requires that parties to a divorce, or any other civil action, be served with a copy of the case. The law requires that the divorce summons and petition be served on the other party within 90 days after filing. There are no exceptions to personal service, and you cannot proceed with your divorce without meeting this requirement.
Serving the Other Party
There are different ways to accomplish service, such as mailing the other party copies of the documents with an "admission of service" form to complete and return. If your ex signs the admission of service document, he or she is confirming receipt and sending proof. This form of service is more useful when the parties are in agreement. When someone is expected to be less cooperative, you can have a sheriff or sheriff's deputy in your ex's county or a professional process server complete the task. Technically, another adult, aside from you, can also execute service. However, it's less risky to have a sheriff or sheriff’s deputy or process server, rather than a non-professional, be responsible for making sure your ex gets the documents. Whatever form you choose you will have to be able to prove to the court that your ex was properly served.
When an Ex is Evading Service
The first question to ask yourself if you think your ex is evading service is why? Have you reached this conclusion because he or she did not mail back an admission of service form? If so, it's important to know that your former spouse is not required to return this document. If the form doesn't come back, this means you will have to have your ex formally served. Do you believe your ex is evading service because the sheriff or process server has yet to locate them? If only a short time has passed, it may be premature to say they are avoiding service. If you think your ex is evading service because a reasonable amount of time has passed and multiple attempts have been made to serve them, you may be right. At this point, it may be necessary to ask the court’s permission to use service by publication.
Service by Publication
Service by publication is used to serve a party that cannot be located. Someone wanting to use this form of service will need to show they have made good faith efforts to find and serve their spouse and have been unsuccessful. These efforts would include things such as contacting him or her at home or work, calling friends and family, going on social media, providing proof of process server attempts, and producing email and text communications. If the court finds you have made sufficient efforts and grants your request, you will run a notice in a local newspaper for a specific period. This will give your ex formal notice and a chance to file his or her response with the court. If your ex doesn’t respond, you can later ask the court for a default judgment granting your divorce. However, even if your spouse does not answer, you will still have to wait 120 days from the date of publication to complete your divorce.
Getting a divorce when your ex is evading service can be complicated, and it's essential to understand your options. Karyn Youso of First Look Family Law is a family law attorney who has experience helping clients with Wisconsin divorce cases. Come in and let us take a “first look” at your circumstances so we can help you evaluate your situation. Please contact us to schedule a consultation.