What Is Personal Service? What Is a Waiver of Service?
Getting a divorce comes with many challenges. First, there is the deluge of emotions you feel when you decide to file for divorce. Then, there are the legal steps you must take to complete formal divorce proceedings.
One of the first hurdles in the legal process is serving divorce papers on your spouse. In this article, we address “you” as the petitioner – the one who files divorce papers with the court. But even if you’re not the petitioner (but instead, the respondent), this information is pertinent and helpful.
The petitioner must provide the respondent with copies of everything they file with the court.
How do you serve divorce papers to your spouse in divorce?
This sounds frightening, but it’s just a standard part of the divorce process. If you’re the Petitioner, you’re required to provide a copy of the Petition to your spouse. Included with the divorce papers is a summons.
The summons tells your spouse what they need to do next. They will have a certain number of days, usually around one month, to respond to your divorce petition in writing. Even if your spouse agrees that divorce is the right option, it’s still in their best interest to respond to the petition.
Personal service is the process of delivering the divorce papers and summons to your spouse in person. This is usually done by a professional process server, someone experienced in personal service.
It is not advisable to let just anyone serve the divorce papers on your spouse, although in most states, anyone 18 or older may act as a process server. You most definitely cannot do it. If you hire a professional process server who knows what documents the court needs, it’s much easier to prove that your spouse was served correctly.
Not every state requires personal service. Some states allow divorce petitioners to serve their spouse via certified mail. If you cannot locate your spouse, you may be able to serve them by publishing a notice in the newspaper, but you’d need prior court approval for this option.
Alternatives to personal service
In states where personal service is required, you may be able to use a different method if you can prove that a reasonable effort was made to serve your spouse. Each state varies on what they consider “reasonable effort.”
Where personal service is not required, you have several options. Again, these options vary by state, but you may be able to serve your spouse by:
- Leaving the packet at their door
- Certified mail
- County sheriff
- Regular mail
- Posting at the courthouse
Make sure you’re following your state’s rules before substituting service.
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What is a waiver of service?
A waiver of service can be used to avoid the formal serving process. As a petitioner, you cannot waive service for your spouse.
However, if you and your spouse are amicable and you’ve given them a copy of the petition before filing it, you can have them sign a waiver of service. If they do, you can file that with the court when you file the petition for dissolution. This lets the court know your spouse has already received copies of the divorce papers and that there is no need to serve a summons.
Why would someone want to issue or sign a waiver of service?
A waiver of service may seem imprudent for the spouse who is not filing the petition for dissolution. However, if both you and your spouse agree on all terms of the divorce – called an uncontested divorce – waiving service can speed up the process. It may even make divorce slightly less expensive.
If your spouse agrees with the divorce and you have given them adequate time to review the petition you plan to file, they may be willing to sign a waiver of service. Spouses who are amicable and agree on how to divide all assets and liabilities may save money and time with a waiver of service.
What if a Respondent does not accept service?
Sometimes, people don’t want to be served. They may try to dodge a process server. They may refuse to sign the green certified mail card. Further, they may simply refuse to acknowledge the divorce petition and summons.
People do this for many reasons. Some are religious; some are nonsensical. Regardless of the reason, if your spouse dodges your service attempts, you have options.
Depending on the state where you live and where you’re filing for divorce, you may be able to serve your spouse by mail, leave the divorce papers and summons at their door, or publish a notice in the paper. State rules vary, so make sure you get good advice about what you can and cannot do.