3.9.2 Absent Persons and Curators

If you cannot locate and serve a Louisiana defendant or serve a nonresident defendant by certified mail or other authorized means under the Long-Arm Statute, you will have to request appointment of a curator for the defendant under La. C.C.P. art. 5091 and make service on the curator. Note that you must try to serve a non-resident under the Long-Arm Statute1 before seeking appointment of a curator. Some clients will work harder to find an address for their spouse if you advise them as to the additional cost and delays for a curator divorce. A curator divorce can be null if the spouse is not an absentee or the spouse’s whereabouts are known.

In Peschier v. Peschier, the Supreme Court upheld annulment of a curator divorce 17 years after entry of the divorce judgment because the defendant was not an absentee and could have been readily located.2 Thus, a diligent search that includes public records, the internet, telephone book, relatives, last known address should be documented in your Motion to Appoint Curator. You should use Westlaw or Google for “people search.” Include language that a diligent search was made. In addition, your client should verify in the Motion that the client has no knowledge of the defendant’s whereabouts and reference how long it has been since the client has known the whereabouts of the adverse party. 

A curator may waive citation and accept service of process. Generally, indigents cannot afford the publication fees or the curator’s attorney fees. Many courts will accommodate indigent plaintiffs by appointing a pro bono curator who will not charge attorney fees. However, the curator will expect the newspaper publication fees to be paid. 

The divorce is tried contradictorily against the curator. Check with the judge’s law clerk as to the level of formality that the judge requires for taking up the divorce. By law, once the Answer has been filed and a reasonable amount of time elapsed (allowing for the curator to place ads, etc.) the matter should be set for trial. If the curator does not want to be present for the trial, ensure that the curator’s Waiver and “Note of Evidence” are in the record. The trial of a divorce against a curator usually consists of presenting a prima facie case for divorce by oral testimony as in a default judgment.

While a default can be obtained against the Curator for failure to file an answer, this is not encouraged. All courtesies should be accorded to the Curator prior to this drastic action. A default judgment granted when the Curator has filed a responsive pleading will be a nullity. 

Although court costs should be cast to the absentee defendant (and you should ask the court to do so in the judgment of divorce), some courts may attempt to cast the client with costs of the curator.3 As a practical matter, the curator’s fees are usually paid by the client or, if the client lacks the means, from funds maintained for that purpose by the legal services law firm or by the court’s volunteer lawyer program. 

• 1See La. R.S. 13:3201–3207.
• 2419 So. 2d 923 (La. 1982).
• 3See Jones v. Jones, 297 So. 2d 198 (La. 1974) (holding that IFP litigants may obtain the services of a curator without prepaying the costs). For a more detailed discussion of IFP litigants’ eligibility for curator services, see Section 13 of the chapter on IFP procedures.