I often see this from people who want to file for divorce (in California, divorces must be done in court so a lawsuit must be filed) because they want to get married again and don’t want to commit bigamy. This concern exists these people never got a divorce to end their prior marriage. They simply moved out (or their spouse moved out) and each went on with their lives. Sometimes a year or two passes before the idea of wanting to get married to someone else pops up, but sometimes 10 or more years might have passed and, for instance, people move far away or pass away.
In such a situation then, how can this person file a divorce case against their spouse if they haven’t seen their spouse for years? Once filed, the divorce papers have to be served on the spouse and that involves finding the spouse. Somehow.
The answer to that question is to do Service by Publication. You might have more commonly heard this described as ‘taking out a newspaper ad’. Most newspapers will have a section where legal notices are posted although it is debatable who or how many people actually look at those ads. I’ve used a divorce scenario to illustrate a situation where service may need to be done via a newspaper ad, but the idea of doing Service by Publication is applicable in California, at least, to a variety of civil lawsuits where serving the lawsuit on the defendant is going to be difficult or impossible. Sometimes this is because the defendant genuinely can’t be found (e.g. Plaintiff genuinely has limited means to find them) or because the defendant doesn’t want to be found. In my experience — and I fully admit this may not be representative — defendants who purposely don’t want to be found generally does so because they know they are guilty of what the Plaintiff has alleged.
The governing law in California for Service by Publication is going to be section 415.50(a) of the California Code of Civil Procedure. If you’re contemplating using Service by Publication in your California civil case, here are some things you need to remember.
Assuming you get the judge’s permission to do Service by Publication, the next step is to actually run the newspaper ad. In my experience in California, each county’s Superior Court will have an established list of permissible newspapers. I’ve always used newspapers from that list because they run these ads all the time, know how to do it, etc. The ad is usually run a few days a week for 4 consecutive weeks and the defendant is then considered served just as if they had been handed the Summons and Complaint in person.
On that note, a word to potential defendants: You can’t prevent or obstruct a lawsuit by refusing to be served or otherwise making yourself difficult to find. If you make service of the summons and complaint difficult, any competent Plaintiff’s attorney will just get a judge to allow for Service by Publication. The case against you will still proceed except the judge will only get to hear Plaintiff’s evidence against you. You won’t be able to defend yourself so even if Plaintiff’s evidence is wrong, the judge will still believe it. Defendants still try to make service difficult, though.
Lastly, I haven’t checked, but I would be extremely surprised if Service by Publication was a California-specific thing. As always, of course, you should look up the laws and procedure for your own state and or county because even in California, there is variation on how precisely to get Service by Publication accomplished. What else? Oh, right, this post is not meant to be an exhaustive description of the topic, but rather just a general overview. If you were wondering about how to sue someone you can’t find, hopefully this post and the resources linked in were helpful.
Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.