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No matter whether you mediate or head straight to court, you'll need to file paperwork with a court in order to get divorced. Although you might not want to have anything to do with your soon-to-be-ex, the law requires you to notify your spouse about the divorce case through the procedure most states refer to as "service of process."
In every state, the law requires spouses who file for divorce to provide a copy of all the documents they file in court to the other spouse. Each state has its own requirements about when and how documents must be delivered. The act of delivering the papers in the manner required by law is called "service of process" or "service."
By requiring service of process, courts ensure that both spouses know about the divorce case and have a chance to respond to and participate in the proceedings.
In most courts, the documents you file to begin the divorce case are the summons and complaint (also called the divorce "petition"). The complaint is the document where you ask the court to grant your divorce, divide your marital property and debt , decide child custody and visitation, and determine spousal support . The summons notifies the non-filing spouse of which court will be deciding the case and how to respond to the complaint.
When you file the divorce petition, the clerk will keep a copy and provide you with an official stamped copy to serve on your spouse. It is your responsibility to serve the documents on your spouse in the manner required by state law.
How Service Works When You've Hired an AttorneyYou're not required to hire an attorney to represent you in your divorce. But, if you choose to work with an attorney, the attorney will handle the technical details of filing documents with the court and serving your spouse. Most attorneys will bill you for the filing fees and costs of service. Although you'll also pay for the attorney's time spent on preparing and filing the paperwork, you'll save yourself the hassle of doing the actual filing and finding someone to serve your spouse. Another benefit is that you won't have to worry about not filing and serving the documents properly—your attorney knows the rules.
The requirement to serve your spouse doesn't end after you've served a copy of the divorce petition—you must continue to serve your spouse with a copy of everything you file in court. For example, if the court schedules a hearing, you will have to serve a copy of the notice of hearing—the document which states the time, date, and place of the hearing—on your spouse.
In some courts, after you've successfully served your spouse with the petition, you might not have to personally serve your spouse: Many courts allow later-filed documents to be served by mail (depending on your court's rules, though, you might have to have someone not involved with the case mail the documents). Your court might even have a procedure where the parties can agree to electronic service. Check with the clerk to find out what the procedures for service are in your court.
Every state allows several possible methods for serving your spouse. The one rule that all of them have in common, though, is that you can't serve your spouse yourself. Instead, you'll have to find a "process server" to do it for you. A process server is someone who is not involved in the divorce and who is at least 18 years old must deliver the documents.
Possible process servers include:
Ideally, the process server will hand-deliver the documents and your spouse will willingly sign a form acknowledging receipt. This form might be called an "acknowledgement of service" or a "waiver and acceptance of service." Sometimes, the statement acknowledging service is on the summons itself. Your spouse's signature is your proof that your spouse has been served—you'll submit this proof to the court (be sure to make a copy for yourself before your deliver it to the court).
If your spouse isn't willing to acknowledge service, your process server will need to complete a form swearing that your spouse was served. This form might be called a "return of service" or "proof of service." The proof of service should include the process server's name, the date and time of service, the name of the court documents delivered, and a statement swearing that the contents of the proof of service are true. The proof of service should be signed by the process server. Your process server should hand deliver or mail a copy of the proof of service to the court clerk, and you can ask your process server to send you a copy, too.
Does a Proof of Service Need to Be Notarized?Whether your proof of service needs to be notarized depends on state law. Most states do not require notarization if the process server uses the court's form for proof of service and signs a statement under penalty of perjury that what's in the form is true.
Some states allow process servers to serve documents by certified mail with a return receipt requested. Certified, return-receipt-requested mail means that the postal service will deliver the documents to your spouse and require your spouse to sign for the delivery. Once your spouse signs, the post office will mail you a copy of the signed return receipt. (If you think your spouse won't sign it, it's best to stick with personal delivery.)
You'll submit a copy of the signed return receipt to the court along with a copy of a completed proof of service form.
The filing spouse must do everything possible to find and serve the other spouse. However, if you can't locate your spouse or your spouse is purposely hiding or avoiding service, you can ask the court for permission to serve your spouse another way. The court refers to this as "service by alternative means" or "substituted service."
You can request an alternative form of service by filing a motion and affidavit of attempted service with the court. The motion and affidavit will explain what efforts you've made to serve your spouse.
If your motion demonstrates that you've made your best efforts to serve your spouse, the judge will sign an order allowing you to use alternative means for service. The order will contain the judge's specific instructions on how to serve your spouse. You must follow the instructions closely.
The most common method of alternate service is by publication. You'll need to follow your court's service by publication rules, but in most courts you'll have to place notice of the divorce in a newspaper that you could reasonably expect your spouse to see. The court's order will specify how long the notice must remain in the newspaper. You'll be responsible for placing and paying for the ad, but you usually can ask the court to order your spouse to reimburse you later. If you can't afford to place an ad, ask the court what other options you might have—the court might allow you to instead post the notice at the courthouse where you filed for divorce.
With the number of print newspapers dwindling across the country, it's become more common for courts to allow other forms of substituted service. Some forms of service that courts have allowed include:
No matter what form of service you use, you must follow exactly the rules of service and any court orders regarding service. If you fail to properly serve your spouse, the court might dismiss your case, leaving you no option but to start the process all over again.