Service of Process by Publication

January 3, 2011

What happens to a civil complaint where the opposing party cannot be served?  Such is often the case is divorces, what we call a “dissolution of marriage” action here in Florida, where the party seeking the divorce often has not had contact with the opposing party and may even be unaware of their whereabouts.  The answer is found in a form of service of process known as “constructive” service.

In order for a court to obtain jurisdiction over dissolution of marriage cases, proper service of process must be made upon the respondent.  Dissolutions of marriage are actions in rem, and thus the res of the action over which the court asserts jurisdiction is the marriage itself.  Therefore the court does not need personal jurisdiction over the respondent to dissolve a marriage; the court merely requires jurisdiction over the marriage itself, or one of the parties to the marriage (the petitioner).

Although the court needs no personal jurisdiction over the respondent, service of process upon the respondent is still required in order that the court to obtain a valid judgment over the res of the action.  In cases where the respondent cannot be found, and substituted service of process[1] cannot be made on an appropriate party, it is still possible to effect constructive service upon the respondent by means of service by publication.  Service by publication can only be had for proceedings in rem.[2]

An affidavit of diligent search and inquiry is a “condition precedent to service by publication.”[3] Diligent search and inquiry is essential to any attempt at constructive service.[4] The last known address of the defending party must be contained within the affidavit.  But what exactly constitutes a “diligent search and inquiry” with respect to service of process?  The answer is not as clear as one might like it to be, and as I will go on to show, this lack of clarity can be quite problematic when it comes to ensuring due process for respondents.


[1] “Substituted service and constructive service have not always been distinguished by the courts.” Trawick’s Florida Rules and Practice, Section 8:19, at page 165

[2] Id.

[3] Florida’s Statute Title VI, Chapter 49.031

[4] Trawick’s, supra N1, at page 169

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