Michael Upton said:
What is the name of your state? California
My wife and I are in full agreement on the contents of our divorce. The problem is she now lives in Mexico with her family and the court will not except the paperwork without her signature. I do not have a problem going to Mexico and having her sign the paperwork, the problem is would the court except the paperwork with a Mexican notary stamp verifying her signature and that she fully understands the contents of the paperwork? Please help. Best regards, Michael.
My response:
What makes you think you have to "go to the ends of the earth" to serve her with "process"? Diligence does not require that you need to go "globe trotting" to serve her. All you need to do is file your "declaration" that she is no longer in the State of California, and in fact, is residing in another country. Therefore, she's not "amenable" to service of process. Once that's filed, the court will allow you to Publish Summons, and if she doesn't respond to the newspaper publication, then she loses by default, and you get everything. It's not YOUR fault that she moved to another country. Moving out of California, and moving to another country, was HER choice. Don't make her choice your burden. Make it work in your favor!
Attempted personal service at a residence need not be pursued more than once where the process server learns upon the first attempt that respondent has moved and discovers through the U.S. Postal Service that the only forwarding address is a post office box. [Ellard v. Conway, supra, 94 Cal.App.4th at 545, 114 Cal.Rptr.2d at 402]
The Constitution does not require personal service of summons in every case. Nor does it require, as a substitute for personal service, the method which is "most likely" to reach the defendant. All that is required is a method reasonably likely to provide notice. [See Greene v. Lindsey, supra, 456 U.S. at 455, 102 S.Ct. at 1881]
If such a method is followed, due process is satisfied even if defendant did not receive actual notice of the proceedings. [Evans v. Department of Motor Vehicles (1994) 21 Cal.App.4th 958, 971, 26 Cal.Rptr.2d 460, 468--administrative proceedings; In re Emily R. (2000) 80 Cal.App.4th 1344, 1353, 96 Cal.Rptr.2d 285, 290--notice by publication satisfies due process in dependency proceedings where alleged father's address is unknown and cannot be determined with due diligence]
An order for publication of summons under Ca Civ Pro § 415.50 requires a finding that defendant "cannot with reasonable diligence be served" in a manner other than by publication of summons. That is not the same as a finding that defendant is "not amenable to the process of the court" (not subject to personal jurisdiction), and hence does not toll the 3-year deadline for service of summons. [Watts v. Crawford, supra, 10 Cal.4th at 761, 42 Cal.Rptr.2d at 93]
Now, go get yourself a good book on divorce at your local bookstore, and read about "service of process" and publication of summons. The instructions and forms are going to be right there.
Good luck.
IAAL
