questions & answers

Question: My husband is homeless and does not really have an address. I mailed the acceptance of service plus the divorce papers to him at his last known addressvia certified mail. If I get the papers back unclaimed or undelivered can I file this along with asking for a default or do I have to go by publication? I cannot afford all these fees. I did get a deferral for the court fees but did not check for publication fees. Publication sounds like it is a hard and delaying process. I hear some saying I can file if I get the certified green card back as proof of service or even if the papers come back unclaimed. We have three kids and I am asking for sole custody.

Answer:

I have never heard of winning a default judgment without attempting (and getting) *some* sort of service on the respondent, and it would deeply surprise me if one could do so in Arizona - especially in a case involving kids. In fact, the family law rule (44) that governs default judgments lies directly adjacent to the rules (40-43) that set out the requirements for service, suggesting a strong connection between the two. Most importantly, Rule 40(I) even directs the court to dismiss your case altogether if you do not accomplish service within 120 days - unless you have persuaded the judge to give you additional time.

If you have diligently tried every conceivable means of service (e.g. personal, residential, statutory agent, certified mail) without luck, and the man is truly homeless, then I think you are going to have to try publication. Yes, it's a nuisance, and yes, there is probably a fee involved. But I don't think you can get a default judgment without serving your husband in some fashion. On the other hand, if you do serve him by certified mail, and he *personally* signs for the papers, then under Rule 41(C)(2), you're fine once you file the affidavit described in that section.

Here is the link to Rule 41, which describes the family law rule for all forms of service within the State of Arizona. Rule 41(M) discusses publication: Arizona Rules of Family Law Procedure Rule 41.
As you will see from the rule, you have to do publication once a week for four consecutive weeks in up to two different counties: (1) the county where you filed the divorce; and (2) if different than #1, the county where you last knew your husband lived.

IMPORTANT!!! -> If you serve by publication, then you will not be able to ask for any orders that require "personal jurisdiction" over your husband.

In plain English, this means that you will not be able to secure an order concerning child support, spousal maintenance or division of the marital property. But you *will* be able to get your marriage dissolved. Also, assuming that AZ has been the home state of your children for at least six months, and no other state court previously issued a custody decree concerning the kids, you will be able to ask the judge for a hearing to grant you sole custody, too.