I constantly hear that I need to 'serve' my spouse to get a divorce. What does that mean, and what do I need to do?
Everyone is afforded 'due process' under the law. In plain English, what that means is that before you are able to sue another person, you first must tell them what you want from them and why. Divorce is actually a lawsuit. Therefore, your spouse needs to be given notice (via "service) informing them that you are filing a suit, and tell them exactly what you are suing for. What this means is that you must provide your spouse with the legal reason why you are asking for a divorce. This is critical since your case might be delayed if your spouse is not served properly.
Different types of services that are available:
Several different methods can be used in a divorce action to make sure your future ex-spouse receives their due process. Personal service is the most common and first type of service. It is the most reliable method, and a majority of courts will require it before any other method is used. An individual who is not a party to your case must deliver the documents personally to the opposing party. Acquaintance or friend, the person must be over 18 years old. A professional process server or local sheriff also can provide the service if you prefer not to get anyone else involved. The service can occur at any time and anywhere - at home, at work, or in public. If the papers are refused by the opposing party when handed to them that doesn't matter. The service will still be considered to be valid even if the documents are set on fire .just as long as the Proof of Service is properly filled out by the server. This is a court form that lets the judge know when, how, and where the process was served. This form must be filed with the court as part of the process.
Mail Service: The initial documents can be served by mail if personal service does not succeed. However, you might have to ask for leave from the court to show why someone should be served by mail instead of serving them personally. It is a similar process. The documents are mailed by a third party to your future ex-spouse, then a Proof of Service is filled out with the same information. Sending it with a required signature is preferable to make sure they receive the documents. Service by mail is completed five dates after the papers have been mailed.
Substituted Service: Usually this is done after there have been multiple failed attempts made to personally serve someone. You will be required to show that personal service has been unsuccessful. Usually, it must be attempted three times at least at different times of the day and in different locations. Substituted service can then be used and papes can be left with someone at your ex's place of work or house if they are over 18 years old. For example, if your ex has moved in wh her or his parents, the documents can be left by the server with the parents. The server will then need to mail a copy of all of the documents that were provided to the employer or parent of the recipient. Then a "Declaration of Due Diligence' will need to be written that explains everything to the court that was done prior to attempting substituted service. Finally, the Proof of Service must be sent to the court.
By Acknowledgement/Notice of Receipt
It is rare, but it can be a good option in situations where the two parties agree on a majority of the terms. The other side basically agrees to be served by mail. A court document can then be signed that states they received the documents. The opposite side will receive the Acknowledgement and Notice and return them to the server. Then the Proof of Service will be filled out by the server with the signed Notice and Acknowledgment attached and filed with the court.
Service by Posting or Publication: This method is not used very often and you must get permission from the court. Before trying this service method, you are required to show that court hat you have exhausted all efforts to find your ex and they cannot be served using the other preferred methods. If you don't know where your ex is, use contacts with roommates, employers, friends, or family. Search social media and the internet or use a background check service. Document everything and then apply with the court to order service for posting or publication. Publication means that notice of the lawsuit is published in a newspaper (and includes your names). Posting refers to the notice being posted at the courthouse for a minimum of 28 consecutive days. Usually, the court clerk can tell you which forms needs to be filled out to complete the process and which newspapers have been approved for use.