Serving a Summons and Petition on the opposing party in a divorce action is often a routine and standard part of the process. But what happens when the other party evades service or cannot be located altogether?
Background: Statutory Requirements
Wis. Stat. section 767.215(3) adopts civil procedure as set forth in Wis. Stat. chapter 801 regarding service of the Summons and Petition on a respondent when an action is initiated by only one party. According to Wis. Stat. section 801.02(1), the Summons and Petition must be personally served upon the respondent within 90 days from the date of filing.
Lauren L. Otte, Marquette 2017, is an associate attorney with Karp & Iancu S.C., in Milwaukee, where she practices in divorce, paternity and post-judgment issues.
When an action for divorce is commenced, the parties often live together or have recently separated households. In either case, the petitioner usually knows the address of the respondent. The authenticated Summons and Petition is then sent to the respondent, or that party’s attorney, along with an Admission of Service with a self-addressed, stamped envelope for ease of return, to acknowledge receipt of the Summons and Petition.
If the Admission of Service is not timely returned, a process server is usually able to serve respondents at their residence or employer. But sometimes, for a variety of reasons, the parties do not keep in touch after separation. If the petitioner has no idea where the respondent lives or works, meeting the statutory service requirements for personal jurisdiction becomes more complex.
When the Respondent Cannot Be Located
Good practice is to attempt service at a respondent’s last known address or addresses at least three to five times, in addition to mailing a copy of the filed Summons and Petition to said addresses with an Admission of Service.
Wis. Stat. section 801.11(1)(c) states that reasonable diligence must be used to personally serve the Summons and Petition on the respondent. While Wisconsin statutes do not explicitly define “reasonable diligence,” case law offers some guidance. Reasonable diligence is a finding of fact that must be found against the great weight and clear preponderance of evidence.1 Any “leads or information reasonably calculated to make personal service possible” must be followed.2
Personal service is not limited to respondents who only reside in Wisconsin. If a petitioner knows or can readily learn that a respondent has multiple addresses in this state or any other, service must be attempted at each address.3
If the process server is unable to serve the respondent after at least three to five attempts at each known address, an affidavit of non-service should be prepared and filed with the court.
The next step is to prepare and file a Publication Summons (Wisconsin State Form FA-4122V), which must then be provided to the newspaper in the municipality where respondents currently live, or where their last known address is located. Practitioners should note that there is a fee for publication which cannot be waived by the court.
When the respondent cannot otherwise be served personally by reasonable diligence, the publication provides notice to respondents via public newspaper that an action for divorce or legal separation has been commenced against them. The notice must be published once a week for three consecutive weeks.
A Publication Affidavit of Mailing (Wisconsin State Form FA-4123V) should also be filed with the court, verifying that an authenticated copy of the Summons and Petition has been sent to the respondent’s last known address in conjunction with being published in a newspaper. The first date of publication is considered the date of service.
Proof of service by publication will be provided by the newspaper indicating the dates and contents of the notice that was published, and must be filed with the court.
Finally, practitioners must file an Affidavit of Efforts to Serve Respondent (Service by Publication) (Wisconsin State Form FA-4184V). This process can be time-consuming, so upon a motion for extension, a court may allow for a 60-day extension for service of the Summons and Petition on the respondent if the petitioner demonstrates good cause for an extension. The motion for extension must be made within 90 days from the date of filing.
If the motion for extension is filed after the 90 days have expired, the motion will only be granted if the court finds excusable neglect for the failure to act and there is a good cause to grant an extension.4
Conclusion: Protecting a Right
Reasonable diligence must be utilized by practitioners in order to establish a court’s personal jurisdiction of respondents when they cannot be located. The process may seem burdensome – however, the steps outlined above must be followed before a court will move forward with the divorce process.
Every party to a divorce action must be afforded a reasonable opportunity to respond and participate in a divorce action under Wisconsin law, and this process protects that party’s important right.
This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.
1Welty v. Heggy, 124 Wis.2d 318, 324, 369 N.W.2d 763 (Ct. App. 1985).
2West v. West, 82 Wis.2d 158, 166, 262 N.W.2d 87, 90 (1978).
3Cunningham v. Montes, 833 F.3d 688, 689 (Ct. App. 2018).
4 Wis. Stat. § 767.215 (4)(a)(b).