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  • Writer's pictureThe Critical Jurist

Your Obstinate Unresponsive Spouse & Finalizing Your Divorce §20-99(5)

Updated: Mar 28






This may seem counterintuitive, but when your spouse chooses to stick their head in the sand and completely ignore any court paperwork this can actually make the process more difficult.


The problem that arises is with the concept of "notice". A court is willing to proceed with a divorce case initiated by a single party as long as it feels comfortable that the other spouse has notice. What does this mean? Essentially that the other spouse is actually aware of the proceeding to the extent that they could take action to protect their interests. The easiest way for this to happen is your spouse hiring an attorney who files their own paperwork.


But what happens if you serve your complaint for divorce on your spouse and they simply do nothing? This is where your process server comes in and files an affidavit attesting that he/she served your spouse in a method acceptable in the law.


So, are you saying if you have valid service then you can simply move forward for entry of a Final Decree of Divorce?


The answer is...maybe.


The following is an actual cut and paste from an email exchange I had with a Circuit Court Clerk. Some background: My client married, and lived, with her husband in Texas. After they separated, she moved to Virginia (and lived here for more than one year before filing for divorce) and eventually filed for divorce.


Although there were no issues between the parties (they had no property or children) the husband, still living in Texas) refused to cooperate. Therefore, after filing for divorce in Virginia I had to find a process server to serve the husband at his residence in Texas. Ultimately, we were able to effectuate posted service on husband in Texas.


When I tried to finalize the divorce and submit a Final Decree of Divorce, the Clerk contacted me and said I could not move forward until either I 1) personally serve the husband or 2) effectuate service by publication (in the newspaper). In support of this she cited Virginia Code §20-99(5).


The following was my response which convinced the court to allow me to finalize my client's divorce.


I spent some time researching and realized that §20-99(5) is a NOTICE statute and not a service statute!

 

§20-99(5) poses the following question:

 

QUESTION:      If you have a divorce and the Defendant fails to answer do you need to give them notice of entry of a Final Decree of Divorce?

 

ANSWER:         This depends on how you served the original Complaint for Divorce.

 

If you served the original complaint by personal service, you do not need additional notice. 

 

If you served the original complaint by posting, then you must provide additional notice.

 

Honestly, I have been practicing (hold on while I check my bar cert hanging on the wall) almost 20 years (thanks for making me feel old…) and this was confusing to me.  But I got to thinking about our conversation and started preparing a publication affidavit for my client.  However, it hit me that my client would have to swear under oath that she did not know where her husband lived.  And this would not be true.

 

I went back and looked at §20-99 and saw that paragraph (3) says service may be made on a nonresident defendant by any of the methods prescribed in § 8.01-296.  And this is the general service statute for all civil cases.  So, logic dictated that posted service should be fine unless there was a specific provision excluding posted service in nonresident divorce cases.  I investigated the general service statutes and could not find anything creating different rules for divorces.

 

Then I thought how is it that I have good service by posting but need personal service for entry of a final decree of divorce?

 

Was it possible that posted service is acceptable for initiating a divorce, but that the same divorce case could never conclude until we have personal service or publication?  This did not make sense to me.

 

So, I took a second look at §20-99(5) and it hit me.  It’s not saying that you MUST have personal service (aka subdivision 1 of § 8.01-296) to finalize a divorce when no answer has been filed.  Its saying that you Must have personal service to finalize a divorce without additional notice to the defendant!

 

So, if you don’t have personal service then you need notice.

 

And this notice can be done by any of the three (personal, posting, or publication) traditional methods of service.

 

§20-99(5). In cases where such suits have been commenced, the defendant has been served pursuant to the provisions of subdivision 1 of § 8.01-296, and the defendant has failed to file an answer to the suit or otherwise appear within the time allowed by law, no further notice to take depositions or conduct an ore tenus hearing is required to be served on the defendant and the court may enter any order or final decree without further notice to the defendant.

 

Let me try to re-write the statute in English:

 

In divorce cases, a court may enter a final decree without further notice only if the defendant was personally served.

 

Or.

 

In a divorce case where the defendant was not personally served the defendant must have further notice before a court may enter a final decree.

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