Why Can’t I Get a Publication Divorce

By: Janice Dantes

 

Many of my Filipino clients come to the United States for better employment opportunities. Not all of them are fortunate enough to bring their families with them. The distance puts a strain on their marriage. As a result, some clients come to me seeking a divorce from the spouse they left in the Philippines.

My first question to these clients is, “Do you know where your spouse is in the Philippines?” Some say, “Of course,” while others say something like, “well, I haven’t heard from him in 10 years.”

For the clients who know where his/her spouse is, I advise them that we have to attempt to serve that spouse in order to move forward with the divorce unless that spouse is willing to sign off on a settlement agreement. To the dismay of these prospective clients, they often come to me and ask me, “Well my friend just published and she was divorced. Why can’t I publish?”

Most clients do not realize that a publication divorce has its limitations compared to a divorce with proper service. Here are a few of the differences:

1. Affidavit of Diligent Search. As a legal professional subject to the ethical obligations bestowed upon me by the Supreme Court of Illinois, I cannot advise you to lie. If you tell me that you know where your spouse is, we have to attempt to serve your spouse. By immediately moving to a publication divorce, you would have to sign an affidavit under penalties of perjury that you have tried to find your spouse. I cannot knowingly advise you to perjure yourself because a publication divorce is “easier” as I can be sanctioned. Further, for clients who are seeking immigration benefits, I would advise against knowingly signing any documents filed in court that are untrue.

2. Publication divorce only grants you the divorce. Under Illinois laws, a judge can only grant a divorce when service is done by publication and cannot make any divisions of assets or debts. All financial issues are reserved. This means, division of assets (e.g. a shared home), no award of alimony, and no award of child support as the court does not have proper jurisdiction over the other spouse. If you and your spouse are joint owners of a home and you obtain a publication divorce, the house is not automatically yours and you will have difficulty selling the home without your spouse’s signature or a court order. In a publication divorce, the case can be reopened. If you as the spouse who fi led for divorce wins the lottery, the spouse you divorced can enter this case and try to request alimony. With a publication divorce, you leave that door open.

3. The court still has jurisdiction over you if you file for divorce by publication. In a publication divorce, you still subject the court to jurisdiction over yourself. If you left a wife and children in the Philippines, this does not mean you do not have to pay support to them. You would still have obligations under the laws of Illinois.

There are ways to serve your spouse in the Philippines. If you have questions about options for moving forward with your divorce, please contact me at (312) 546-5077 or janice@pinaylaw.com.

Thank you for reading. Until we meet again, love one another.