In Florida, unless you are engaged in a simplified divorce (i.e. both you and your spouse share the role of petitioner), then you must “serve” the opposing spouse – the Respondent – with your divorce petition and initial papers.
It is common misconception that an opposing party has to agree to “sign” divorce papers. This is not true. A solo Petitioner can effectuate a divorce without the other party. You do, however, have to serve a copy of the petition upon the opposing party in order to trigger the lawsuit and obtain your divorce. There are two ways to achieve this.
The first, and most common, is by “personal service.” Personal service is required for all petitions and you cannot achieve it merely by mailing or hand delivering a copy to the other party. You have to use either the sheriff’s department or a private process server. Personal service is used when you know where a person is located and you can send a process server to their home in order to deliver the paperwork. The process server then formally registers by “certificate of service” how that delivery was made (for example, by handing to the person themselves, or to a co-resident over the age of 15) and on what date and time. This date is used to count the twenty days that the Respondent has to file an answer before he or she can be held in “default” and proceedings can go on without them.
If you do not know the location of the other party or they are deliberately evading service, you can apply for what is called “constructive service” or “service by publication.” In order to do so, you must first fill out an “Affidavit of Diligent Search and Inquiry” (Form 12.913(b)) in your case.
BE CAREFUL! There are actually two forms labeled “diligent search.” Form 12.913(c), “Affidavit of Diligent Search” is for cases in which the legal father’s rights might be up for termination (i.e. step parent or private adoption). This form requires extra steps for seeking out the location and/or identity of the legal father.
Once you have filled out your “Affidavit of Diligent Search and Inquiry” (Form 12.913(b)), you can proceed with service of process of publication. Florida Statutes §49.011(4). This step of the process requires “publication of notice” in an ad in a newspaper published in the county in which the cause of action is pending. For cases with a legal father’s right at issue, you must also publish in that father’s last known county of residence (see Florida Family Law Rule of Procedure 12.080).
The Notice of Action must contain the following information: The names of the parties, the nature of the proceeding, the name of the Court in which the action was filed, and the description of real property (if any in dispute) proceeded against. Florida Statutes §49.08. You must run this notice ad in a publication for four consecutive weeks, and the clerk of court will simultaneously post a notice at the courthouse, and mail a copy to the Respondent’s last known address. Florida Statutes §49.10. There are provisions in Chapter 49 if your county does not have a regular newspaper. Once the four week period has ended, you must provide proof of the ad by filing a copy in the Court file, and thereafter may request that proceedings go forward.
The Florida Supreme Court website has links to process server paperwork and instructions and can be access online at http://www.flcourts.org/
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