I keep hearing that I have to ‘serve’ my spouse for a divorce. What does this mean, and how can I do it?
The law affords everyone ‘due process.’ Or in plain English, before you can sue someone, you have to first tell them what you want and why. Yes – a divorce is a lawsuit! Your spouse therefore must receive notice (via “service”) that you have filed suit, as well as notice of what exactly you are suing them for. In other words, you have to tell your spouse the legal reason for your requested divorce. If you do not get your spouse properly served, your case can be delayed or dismissed.
After being served, if the Respondent spouse would like to file an Answer, they must do so within 21 days of filing the Acceptance of Service with the Court if they were served in Utah, 30 days if they were served outside of Utah.
Signing a Stipulation
The ideal and easiest divorce path would be for your spouse to sign a stipulation confirming that they agree to the terms of the Petition, meaning that you and your spouse already agree on all the issues (diving property, custody terms, ect.), if so, not only can you skip the need to serve your spouse, but you’ll also both be able to skip the financial disclosures. Additionally, your spouse will be able to avoid the work and hassle of filing an Answer and paying the filing fee.
Types of service:
If your spouse agrees with the terms set in your Petition, and is willing to waive their legal rights to participate in the process (because they don’t need to participate since they already agree to the terms), the “Acceptance of Service, Appearance, Consent, and Waiver” form is a great option. This form states that the Respondent (spouse responding to the Petition) agrees to everything outlined in the divorce petition and does not wish to file an answer or response to it. The Petitioner (filing spouse) provides the waiver to the Respondent along with all of the papers, by mail or hand delivery. The Respondent must sign the document in front of a notary and return it to the Petitioner, who then files it with the Court.
The simplest way to serve documents upon the Respondent is if they sign an “Acceptance of Service” form first, which bypasses the costs associated with formal service. This means that they agree to being informally served, meaning you do not have to follow the strict service requirements that must be followed for other forms of service (such as for personal service or service by registered mail). Under this option, the documents can be hand delivered by you (or anyone else over the age of 18 who is not involved in your divorce), sent by regular mail, or by email. The Respondent must then sign the Acceptance of Service form and file it with the Court (or give it to you to file on their behalf), and also provide you with a copy of the signed form. This form does not affect the Respondent’s rights, such as their right to file an Answer to the Petition.
If the Respondent spouse would like to file an answer, they must do so within 21 days of filing the Acceptance of Service with the Court if they were served in Utah, 30 days if they were served outside of Utah.
Personal service is completed by a 1) third-party, who is not a party to the divorce and also not an attorney for either party in the case, and 2) they have to be 18 years or older, who isn’t a convicted felon or respondent in a protective order proceeding. This is typically completed by a process server, which requires a fee. You can also have the Sheriff’s Department or someone you know, who meets the requirements and knows the rules of service, to serve your spouse.
A Proof of Completed Service must be filed with the Court, which requires the person who completed service provide details of how they served the documents.
Service by registered mail is another option, and requires that the Respondent must personally sign for the delivery of the documents. If someone other than the Respondent signs, this does not qualify as service.
Like personal service, a Proof of Completed Service must be filed with the Court and a receipt signed by the Respondent must be attached as proof.
What if you can’t find your spouse no matter how hard you’ve tried, or you think they’re trying to avoid being served? You might need to file a Motion for Alternative Service. This form asks the Court for permission to use alternative methods. You’ll have to demonstrate that you did your due diligence, and unfortunately, it’s not enough to say you don’t know where they are. You’ll have to outline all of the ways in which you tried, such as contacting your spouse’s friends and family, going to their last known place of work, or even having done internet searches. You’ll also need to explain the alternative methods that would be most likely to work in order to give notice to your spouse. This could be through the use of text messages, email, social media, or posting on the Utah Press Association’s Legal Notices page online. Another way, though antiquated, is by publishing in the legal notices section of a newspaper, once a week for some number of weeks.
If the judge grants you alternative service, you’ll have to follow their requirements exactly. You’ll also need to file a “Proof of Service by Alternative Means” form and return it to the Court. Examples of what constitutes proof can be found here.
Have questions on how to start your divorce? Schedule a FREE 15-minute strategy session with our team of divorce experts.