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Do you think personal service is required in your case……..guess again!

Generally speaking, personal service of the initial divorce petition and summons on your spouse is necessary in order to effectuate full relief. The concept of due process of law mandates that all parties involved be afforded the opportunity to have notice of the proceedings and opportunity to be heard.

What happens however, when you don’t serve your divorce papers on your spouse, but your spouse decides to actively participate in the proceedings?

A recent case from the Boca Raton, Florida area dealt with this very issue. A final judgment was set aside and vacated by the trial judge in the case of Sheila Scott-Lubin v. Paul J. Lubin, 35 Fla. L. Weekly D2688a, decided on December 8, 2010. The court had ruled that there was no personal jurisdiction over the husband since he was never served with the divorce papers, in spite of the fact that he actively participated in the proceedings.

In this particular case, the wife had filed a petition for divorce in 2005. However, she was unable to locate her husband, and the court authorized a divorce by publication. In 2006, the court had granted the divorce, awarded the wife the marital residence, cars, permanent alimony, and attorney’s fees and costs.

Several years later, the wife brought forward before a magistrate proceedings to enforce her judgment. The husband appeared at the magistrate’s hearing. He indicated that he was unaware of the judgment, but he never raised any objection to the lack of personal service over him. The magistrate ordered the husband to pay the amounts previously awarded to the wife.

Subsequent to this hearing, the husband had obtained counsel in an effort to have the final judgment vacated, which in fact was successfully accomplished. The husband was never personally served with a summons and copy of the divorce petition, therefore the trial judge ruled that the judgment had to be vacated.

Generally, when an individual proceeds with a dissolution of marriage action by publication, that method would not be sufficient to determine issues related to alimony and property. The court would only be able to dissolve the marriage.

The Fourth District Court of Appeal reinstated the final judgment in this case. Since the husband had voluntarily appeared and participated at the magistrate’s hearing, he waived his right to challenge the court’s jurisdiction. The court further noted that “it is well established that if a party takes some step in the proceeding which amounts to a submission to the court’s jurisdiction, then it is deemed that the party waived his right to challenge the court’s jurisdiction regardless of the party’s intent not to concede jurisdiction.” Solmo v. Friedman, 909 So.2d 560 (Fla. 4th DCA 2005).

As you can see, and although it rarely happens, a divorce can in fact be obtained without personal service on your spouse.

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