Posted by Nydia Streets of Streets Law in Florida Divorce

When a spouse cannot be located, how does the other spouse get a divorce in Florida? The spouse who cannot be located may be served by publication. This means notice of the case is published for four consecutive weeks in a local newspaper to put the absent party on notice that a case is pending. There are specific requirements for the notice if real property is involved. This was an issue in the case Contreras v. Contreras, 3D21-1226 (Fla. 3d DCA December 1, 2021).

The former wife filed a petition for divorce, and after locating the former husband in a prison in Mexico, the former wife proceeded to serve him by publication. The notice of action for divorce did not contain any description of real property. In the final judgment that was entered by the court based on the default, the former wife was awarded 50% of the surplus of proceeds from a foreclosure sale of marital property. The former husband appealed.

The appellate court reversed on the basis that property rights cannot be decided in a divorce by publication absent the court obtaining in rem jurisdiction over property described in a notice of action. The court held “Here, although the wife described the property in her petition, it is axiomatic ‘there [was] nothing in the notice of action to put the [husband] on notice that his . . . interest in real property in Florida [would] be proceeded against.’ 26 Fla. Jur. 2d Family Law § 1073. The wife argues, however, that, having failed to move for rehearing below, the husband waived any defect. We are not so persuaded. A legion of cases make it clear that the issue of subject matter jurisdiction may be considered by an appellate court even though raised for the first time on appeal. [internal citations omitted]. Further, ‘because in rem jurisdiction is a special type of subject matter jurisdiction, unlike personal jurisdiction, it may not be waived.’”

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