Desertion is one ground for divorce under T.C.A. § 36-4-101(a)(4) if a spouse has been absent for at least one year and the absence is “willful or malicious” and without “reasonable cause.” A party seeking a divorce may establish these facts in a sworn petition and/or through the corroborating testimony of witnesses.
How does a party seeking a divorce from a deserting spouse give notice of the divorce if the spouse cannot be found? Service by publication is often the answer, meaning a printed notice in a newspaper with a broad readership in the area. A court can allow service by publication if a party files a Motion and supporting affidavits attesting to the fact the whereabouts of the spouse is unknown and detailing the diligent efforts made to locate him or her. Service by publication must be done in strict compliance with the requirements of the law or else any order entered by the trial court risks being voided by the missing spouse at a later date. See Turner v. Turner, 473 S.W.3d 257 (Tenn. 2015) (vacating trial court order terminating a mother’s parental rights due to defective attempt to serve by publication).
Service by publication is not limited divorces based on desertion. It can be used in divorces based on other grounds but should be used only as a last resort. In addition to the risk of defective service, the trial court may not be able to exercise control over some marital property if the spouse has not been directly served with papers