By: Jessica A. Bryant
When starting an initial Colorado family law case, the two first steps are filing the initial case documents (Petition and Summons) and getting the other party served. Pursuant to the Colorado Rules of Civil Procedure, Rule 4, serving divorce papers generally comes in two forms: either the other party signs what is known as a Waiver and Acceptance of Service (acknowledging receipt of the documents and waiving the requirement for personal service) or the other party needs to be personally served (a sheriff or private process server needs to hand the initial case documents directly to the other party, to a family member over the age of 18 at the other party’s residence, or to the other party’s supervisor, secretary, administrative assistant, bookkeeper, human resources representative, or managing agent at his or her workplace).
However, the question sometimes arises, what is the next step if you do not know the home or work address of the other party? Many times, people simply decide to wait and not face the headache of trying to find the other person. Sitting back and doing nothing is generally not the best course of action to take, particularly in divorce cases. As long as you remain married, even if you have been physically separated for years, any property accrued (real estate, retirement, bank accounts, etc.) is generally considered marital property (with a few caveats). Also, the longer you remain married, the more likely it is that the other party may be entitled to your Social Security benefits due to the length of the marriage. Finally, as the duration of spousal maintenance (alimony) is tied into the length of the marriage, the longer the length of the marriage, the longer a term of spousal maintenance could last. Thus, it is often recommended that you take the time to track down the other party at the time you are thinking of pursuing a divorce case, rather than wait several years and ending up with a longer term marriage.
The first recommended step when trying to find the other party is through internet searches. There are several websites on which you can conduct people searches to obtain detailed information, for little to no cost (i.e., whitepages.com, Intelius, etc.). Many of these websites will not only provide the name, city, and state of each individual in the search result but, also the age and the names of known associates. Detailed free results can help you narrow your search and lessen your costs when it comes time to click on the paid features potentially necessary to get further detail. Another option for finding the other party online is to run a background check through the Colorado Bureau of Investigation or a general case search through CoCourts.com. If the other party has had other court cases in the state of Colorado, part of the court file may be public record from which you might be able to obtain a home or work address.
If those routes do not provide you with the other party’s address, you can look for a private process server that offers skip tracing services, which is a process they go through to locate the individual’s whereabouts. Some process servers offer skip tracing for less than $100. You might also consider a private investigator, who can work with the information you do have, including family information, to try to track the other party down. Of course hiring a private investigator can come with a significantly higher cost.
If the above stated efforts ultimately fail and you are truly unable to find the other party, you still have the statutory option of serving the other party via “publication.” Service by publication entails filing a motion with the court, which, if satisfied that you have made appropriate service efforts, will then authorize notice of the proceedings to be published in a local paper for a set period of time. After the time expires, the other party will be deemed to have been “served.”
However, service by publication limits the types of orders the court can enter. Service by publication does not allow the court to enter any orders requiring the other party to pay money (such as child support, spousal maintenance, etc.) because the court is not considered to have “personal” jurisdiction over that party. That being said, service by publication does allow the court to enter a divorce decree, divide some property, and make other orders that do not require “personal jurisdiction.”
Again, to serve the other party by publication you first need to request the court’s permission to do so. However, the court will not expect your efforts to include turning over every potential stone or expending great amounts of money before granting permission to serve by publication.
It should also be noted that the requirement to personally serve the other party only applies to brand new cases, such as a new divorce or custody case. It does not apply to post-decree proceedings, such as modifications. Thus, once final orders enter, service of motions, whether to modify or enforce orders, can generally be accomplished via regular U.S. mail, to the other party’s last known address. In light of the relaxed service requirements for post-decree actions, it’s very important you make sure your current address is always on file with the court. If you fail to update your address, a motion sent to the most recent address on file with the court will be deemed properly served, even if you no longer live there. Failure to respond can result in default orders against you.
Realistically, spouses normally keep in touch or keep track of each other and actually having to make efforts to find them is not an issue. However infrequently, most Denver family law attorneys have seen cases in which years go by after separation in which people do truly lose contact. Likewise, they see cases in which the other party goes to great lengths to hide out to avoid service. Your attorney will be able to advise you as to the most practical and efficient ways to try to track down an M.I.A. spouse or other party. Likewise, they will know how to serve by publication should the need arise.
