Service after a Separate Maintenance Hearing

I recently received this question:

“I filed for divorce in September 2012 and reached a settlement with my spouse that was approved by the court a few months ago, but we were not divorced at that hearing.  Since then my wife relocated to Ohio and I don’t know where she is.  I want to finalize the divorce by year-end. I’ve been told that in this case I can simply send a certified letter to her last known address and that the ‘green card’ doesn’t need HER signature.  Is this true?

The answer to your question will be different depending on how the court procedurally handled the order approving the agreement.  By approving the agreement, the court could have issued a final order of separate maintenance that approved the agreement.  The court could have also entered a final order as to the approval of the agreement and held open the issue for divorce.  If a final order of separate maintenance was issued that approved the agreement, then you would be required to file a new action for divorce and would have to prove service upon your wife in accordance with Rule 4 of the South Carolina Rules of Civil Procedure either by personal service or by producing the green card where she signed for receipt of the summons and complaint that was mailed to her certified mail, return receipt requested, restricted delivery.

If the earlier case is still open and you are just mailing her a notice of the final hearing, Rule 17(a) of the SC Family Court Rules require notice of the final hearing to be “mailed to the defendant at [her] last known address, by certified mail, return receipt requested.”  This is different from proving service of the summons and complaint as the rules require you to prove you mailed the notice in this particular manner but don’t necessarily require you to prove she received the notice by tendering the green card to the court. 

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