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, and most common type of service is personal service. Personal service is the most reliable method, and most courts will require this be done before any other methods. Someone who is not a party to the case must personally deliver the documents to the opposing party. Friend or acquitance, the third party must be over 18. The local sheriff or a professional process server can also help effectuate service 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.
If personal service is unsuccessful for the initial documents, you can serve by mail, but you may need to request leave from the court showing why you should mail someone over personally serving them. The process is much the same – a third party mails the documents to your ex-to-be, then fills out a Proof of Service with the same information. It is preferable to send it with a signature required to ensure that they have received the documents. Service by mail is complete five days after the papers are mailed.
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 is rare, but in divorces where the parties agree on most of the terms, could be a good option. 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.
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.