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.
Types of service:
There are several ways to ensure your ex-to-be receives their due process in a divorce action. The first, a more well-known method, is personal service; it’s considered the most reliable option. Someone who is not a party to the case must personally deliver the documents to the opposing party. Friend or acquaintance, the third party must be over 18. The local sheriff or a professional process server can also help effectuate service, for a fee, if you do not want to get anyone else involved. Service can happen anywhere and anytime– at home, in public, or even at work. It does not matter if the opposing party refuses to take the papers when they are handed to them. Service is valid even if they set the documents on fire, as long as the server properly fills out a Proof of Service – a court form which tells the judge when, where and how process was served. The Proof of Service must be filed with the court.
This is the most common option, for divorces where the parties agree on most of the terms. Basically, the other side agrees to be served by mail and can sign a court document saying they received the papers. The other side will receive the Notice and Acknowledgement, and will return it to the server. The server will then fill out the Proof of Service, attaching the signed Notice and Acknowledgement, to be filed with the court.
Most documents in a divorce proceeding can be served by mail. A person, other than yourself, over the age of 18, mails the documents to your soon-to-be-ex, then fills out a Proof of Service, informing the Court of when and to what address the mailing was sent, as well as what documents were mailed. A Petition can also be mail served, so long as your soon-to-be-ex agrees to service by mail. If so, the process is the same as above, though your ex will be required to sign an Acknowledgment stating that they received the documents.
Substituted service is usually what is done after multiple attempts to get someone personally served have failed. There are requirements to show that personal service has failed – it must usually be at least three times, at different locations and different times of day. Then, you can use substituted service, and leave the papers with someone at your ex-to-be’s house or place of work if they are over 18. For example, if your spouse moved back in with his/her parents, the server can leave documents with them. Then, the server has to mail a copy of all the documents provided to the recipient’s parents or employer, and write a ‘Declaration of Due Diligence,’ explaining to the court everything that was done before substituted service was attempted. Finally, once again, the Proof of Service is required for the court. This service is deemed complete 10 days after service.
This uncommonly used method requires the court’s permission. Before you try this method of service, you will need to show the court you have exhausted efforts to locate your ex-to-be and cannot serve him/her in the other preferred ways. If you do not know where he or she is, look for him using contacts with family, friends, employers or roommates. Search the Internet (even social media) and consider using a background check service. Make a note of all your efforts, and then apply to order service for publication or posting. Publication means notice of the lawsuit will be published in the newspaper (and will include your names), while posting means the notice will be posted within the courthouse for at least 28 days in a row. The court clerk will usually be able to give you an idea of which newspapers are approved, and which forms you should fill out to accomplish this process.