In the realm of Wisconsin family law, “service by publication” is often viewed as the procedural safety net of last resort. Under Wis. Stat. section 801.11(1)(c), when a spouse cannot be located after “reasonable diligence,”[1] the law allows for notice to be published in a newspaper to satisfy due process.
However, for practitioners dealing with spouses residing in countries that criminalize defamation for revealing secret of family life, this procedural requirement creates a dangerous paradox: complying with Wisconsin civil procedure may necessitate the commission of a foreign crime.
The Wisconsin Requirement: Diligence and Publication
Wisconsin courts maintain a strict hierarchy for service. An attorney must first attempt to provide personal service. Ideally, personal service is obtained; however, if it is not, an attorney must obtain an Affidavit of Non-Service before turning to publication.
Reasonable diligence does not mean that you lift heaven and earth to locate a new address, but you must make attempts to obtain an updated address. This may include your client asking friends and family for an updated address, searching local inmate portals, completing a skip trace, or other address database searches. The best practice is to obtain a Declaration of Efforts to Serve Spouse (FA-4184V) from your client and draft one yourself for any additional steps you took.
Once triggered, the summons (FA-4122) must be published as a Class 3 notice in a newspaper “reasonably calculated” to reach the respondent. This is typically a newspaper where the respondent is believed to reside. The Class 3 notice is published in the paper for three consecutive weeks. A Declaration of Mailing (FA-4123) regarding the Publication[2] Summons and Authenticated Summons and Petition of divorce must be accomplished prior to the first date of publication.
For a spouse known to be residing internationally, the publication must logically occur in a newspaper circulated within that jurisdiction to satisfy the constitutional requirement of “notice reasonably calculated” to reach the party.
Wis. Stat. section 813.12 provides that adequate service by publication be accompanied by mailing or sending of a fax of the published notice. Wis. Stat. section 813.12(2)(a).
Additionally, Wis. Stat. section 985.02(3) also requires that:
[t]he newspaper that publishes a legal notice shall, in addition to newspaper publication, place an electronic copy of the legal notice at no additional charge on the publishing newspaper’s internet site and on the Wisconsin newspapers legal notices internet site. Every newspaper that publishes legal notices shall have an internet site and include on its homepage a prominent link to the newspaper’s legal notices section, the contents of which shall be available for viewing at no cost to the public. The newspaper’s internet legal notice section shall include a link to the Wisconsin newspapers legal notices internet site, as defined in s. 985.01(7).
By requiring that publication notices be available for free via the internet in addition to physical publication, the statute provides for adequate notice for anyone incentivized to check them online.
Going Abroad and Lifting the Curtain
Before blazing into international publication, you will want to check the country’s laws and codes.
For example, under Federal Decree Law No. 31 of the United Arab Emirates (UAE) penal code, it would likely constitute a criminal offense to publish in a UAE newspaper to be circulated widely. The applicable part reads:
Any person who publishes by any ways of publicity, news, pictures, or comments in relation to the secrets of personal or family life of the individuals [subject of the person’s statement], even if true, shall be liable to the same penalty [of a jail sentence and a fine].[3], [4]
Furthermore, Article 425[5] stipulates that if defamation or disclosure occurs via a newspaper or public medium, it is considered an aggravating circumstance, potentially leading to:
- mandatory jail sentences;
- significant financial fines;
- criminal liability for both the client/spouse and the assisting counsel.
In cases involving allegations of domestic abuse, the risk is magnified. Under the law, broadcasting such allegations in a public forum, even to satisfy a Wisconsin court, could be construed as a criminal disclosure of family secrets or criminal defamation.
It requires balancing the risks and needs of your client and their future. Is your client planning to return to that country in the future? Would this prevent the client from visiting family in the future? Is there any risk of the penalties reaching them where they currently live?
The Ethical Impossibility for Wisconsin Attorneys
Wisconsin practitioners are bound by SCR 20:1.2(d), which strictly prohibits a lawyer from counseling or assisting a client in conduct the lawyer knows to be criminal:
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.
If an attorney facilitates a publication in a circulated newspaper that triggers a law similar to the UAE, they are effectively assisting in a foreign crime. This creates an ethical blockade. A Wisconsin court cannot, and should not, compel a party to violate the penal codes of a sovereign nation to satisfy a domestic procedural rule.
Seeking Alternative Avenues
Given the criminal risks, what is the recourse for a pro se litigant or an attorney?
- Pursuing alternative service: Can you obtain personal service through an admission of service via email and electronic signature? Are there family or friends that are willing to serve and sign an Affidavit of Service?
- The “last known address” mandate: If the defendant’s last known address was in Wisconsin, be prepared to use that address and effectuate publication and mailing at that address. You must show the court you tried to find a current address (checking with relatives, social media, past employers, or post office forwarding). If, after this search, the only address you have is an old one, you must mail the documents to that last known address.
- Expert testimony/affidavits: Submitting an affidavit regarding international law can provide the court with the necessary “good cause” to waive the publication requirement in favor of a safer method.
Conclusion
The intersection of Wisconsin’s “reasonable diligence” and the international laws regarding “Crimes Involving Disclosure of Secrets” creates a significant barrier to justice. As global mobility increases, Wisconsin courts must remain flexible, recognizing that in certain jurisdictions, the “safety net” of publication is actually a snare.
Attorneys must prioritize their ethical obligations under SCR 20:1.2(d) and advocate for innovative service solutions that respect international laws and codes while upholding their client’s right to dissolve a marriage.
This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.
Endnotes
[1] Per Petitioner v. Flynn, 2025 WI App 1, “Wisconsin courts have treated the term ‘due diligence’ synonymously with the term ‘reasonable diligence,’ see West v. West, 82 Wis. 2d 158, 167, 262 N.W.2d 87 (1978), and we use the term ‘reasonable diligence’ for the purposes of our discussion.” Flynn, 2025 WI App 1, at ¶20. ↩
[2] Publication means running it in a newspaper. ↩
[3] Please note that these citations from the UAE penal code come from the English version of their laws as posted on a government website: Laws and Legislation, United Arab Emirates Ministry of Justice. ↩
[4] Federal Decree Law No. 1: On the Issuance of the Crimes and Penalties Law, Title 7: Crimes Against Persons, Chapter 6: Crimes Involving Defamation, Insult, and Disclosure of Secrets, Article 431 (emphasis added). ↩
[5] Perhaps of note, the UAE penal code states, “If the defamation is committed by way of publishing in any newspaper or publication, such matter shall be considered an aggravating circumstance.” Federal Decree Law No. 1: On the Issuance of the Crimes and Penalties Law, Title 7: Crimes Against Persons, Chapter 6: Crimes Involving Defamation, Insult, and Disclosure of Secrets, Article 425. ↩