Part I of this article addressed the rules for perfecting service of process in Georgia divorce and alimony actions. Yet, not all methods of service are created equal, in terms of the relief which they enable. Even when a divorcing spouse technically perfects service on a defendant, the method of service used may limit her remedies. The remedies available depend upon a court’s personal jurisdiction over the defendant, and service of process can affect personal jurisdiction. In this Part II, we discuss the relationship between service of process and personal jurisdiction, and the resulting impact on the remedies available to a divorcing plaintiff.
If a plaintiff employed a valid method to personally serve process on a defendant within Georgia, personal jurisdiction over the defendant will exist.(1) Personal service of process out-of-state, on a nonresident, also will confer personal jurisdiction, if the nonresident defendant maintains a matrimonial domicile in this state at the time of the commencement of the divorce action or resided in this state preceding the action.(2)
In contrast to personal service, when a plaintiff serves a defendant by publication alone, the satisfaction of due process requirements to confer personal jurisdiction over the defendant carries additional conditions. For instance, when a nonresident defendant’s address is known, service by publication will satisfy due process requirements where the plaintiff meets the burden of establishing that the defendant received actual notice of the suit or expressly or impliedly waived such notice.(3) When a nonresident defendant’s address remains unknown, however, personal jurisdiction requires service by publication combined with a showing that the plaintiff exercised reasonable diligence in attempting to ascertain the defendant’s whereabouts.(4)
To our knowledge, no published appellate decision in Georgia has specifically addressed the due process/personal jurisdiction requirements for service by publication alone on a Georgia resident in a divorce and alimony case. It may be that the same due process standards for nonresident defendants discussed above would apply. Or perhaps a court would apply the standards utilized in tort actions, where service by publication confers personal jurisdiction over a resident of Georgia who is actually present within the state, has actual knowledge of the suit, and willfully secrets himself in order to frustrate all reasonable efforts to effect personal service.(5)
If personal jurisdiction exists, a court in a divorce and alimony action should have the power to grant a divorce, award alimony and attorney’s fees, and equitably divide property located within and outside of this state, even if the defendant fails to appear at trial.(6) Where due process requirements and personal jurisdiction do not exist though, a court cannot award plaintiff alimony or attorney’s fees in a divorce action and cannot enter orders concerning property located out-of-state.(7) And even if the above-stated due process concerns are satisfied, where a plaintiff serves a nonresident defendant by publication alone, it may be that a court cannot grant periodic alimony, attorney’s fees, or orders regarding out-of-state property.(8)
Georgia law remains somewhat unclear as to whether a court lacking personal jurisdiction can award “in rem relief” (i.e., the grant of a divorce, equitable division of marital assets located in this state, and an award of property located in Georgia as permanent alimony), as opposed to “in personam relief” (i.e., periodic alimony, attorney’s fees, and orders for equitable division of marital assets and other orders regarding the disposition of property located outside of Georgia).(9) On the one hand, the Supreme Court of Georgia has held that personal jurisdiction is not a prerequisite to the grant of a divorce by a Georgia court and that “[t]he party seeking a divorce need show only that the trial court has jurisdiction over the res of the marriage which results from [plaintiff’s] domicile in this state for the six-month period preceding the filing of the action.”(10) The Court went on to state that “notwithstanding a lack of personal jurisdiction over the defendant in a divorce case, a trial court can render a valid judgment in rem with respect to the res of the property within its territory” such that it can determine the respective interests of the spouses in any marital property located in this state.(11) On the other hand though, an earlier opinion of the Court had stated that “regardless of whether a proceeding is in rem or in personam, due process requires that a chosen method of service be reasonably certain to give actual notice of the pendency of a proceeding to those parties whose liberty or property interests may be adversely affected by the proceeding.”(12)
(1) O.C.G.A. § 50-2-21; and Gant v. Gant, 254 Ga. 239, 240(1), 327 S.E.2d 723 (1985), citing Humphrey v. Langford, 246 Ga. 732, 273 S.E.2d 22 (1980). (2) O.C.G.A. § 9-10-91(5). (3) McDade v. McDade, 263 Ga. 456, 457(2), 435 S.E.2d 24 (1993), citing Marbury v. Marbury, 256 Ga. 651(1), 352 S.E.2d 564 (1987). (4) McDade, supra, 263 Ga. at 457(2); Marbury, supra, 256 Ga. at 653(1). (5) Ragan v. Mallow, 319 Ga.App. 443, 744 S.E.2d 337, 340(2) (2012), citing Melton v. Johnson, 242 Ga. 400, 403–404, 249 S.E.2d 82 (1978). (6) See Eversole v. Eversole, 300 Ga. 568, 568-570, 797 S.E.2d 481 (2017). (7) Abernathy v. Abernathy, 267 Ga. 815, 817, 482 S.E.2d 265 (1997). (8) See Veazey v. Veazey, 246 Ga. 376, 377, 271 S.E.2d 449 (1980); accord Benefield v. Harris, 143 Ga.App. 709, 711, 240 S.E.2d 119 (1977). (9) See Abernathy, supra, 267 Ga. at 816-817; and Albers v. Albers, 238 Ga. 590, 592(3), 234 S.E.2d 507 (1977). (10) Abernathy, supra, 267 Ga. at 816. (11) Id. at 817. (12) Abba Gana v. Abba Gana, 251 Ga. 340, 343, 304 S.E.2d 909 (1983).