“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. In other words, before you can sue someone, you must first tell them what you want and why.
Yes—divorce is a lawsuit. Your spouse must therefore receive a notice (via “service”) that you have filed suit and notice of what exactly you are suing them for. Put simply, you must tell your spouse the legal reason behind your divorce request.
If you do not get your spouse properly served, your case could 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 and most 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. 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 at any time: at home, in public, 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 that tells the judge when, where, and how the process was served. The Proof of Service must be filed with the court.
By notice or acknowledgment of receipt
This is the most common option. It works well 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 receives the Notice and Acknowledgement and returns it to the server. The server then fills 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 who is over the age of 18 mails the documents to your soon-to-be-ex. They then fill out a Proof of Service informing the court what documents were mailed and when and to what address the mailing was sent.
A petition can also be served by mail if your spouse agrees to it. The process is the same as above, though your ex must sign an acknowledgment stating that they received the documents.
Substituted service often occurs after multiple attempts to serve someone personally have failed.
There are requirements to show that personal service has failed. Attempts must be made at least three times (usually), and they must occur at different locations and different times of the 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 their parents, the server can leave documents with them. The server then must 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 that all tasks were complete before substitute service was attempted.
Finally, once again, Proof of Service is required for the court. This service is deemed complete 10 days after service.
Service by publication or posting
This uncommon method requires the court’s permission. Before you try this method, you will need to show the court you have exhausted efforts to locate your ex-to-be and cannot serve them in the other preferred ways.
If you do not know where your spouse is, look for them using contacts with family, friends, employers, or roommates. Search the internet (even social media), and consider hiring a background check service.
Keep track of your efforts, and 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). 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.