What Are the Rules for Serving Divorce Papers?
By Beverly Bird
Simply filing a complaint or petition isn’t enough to begin the process of getting divorced. The court can’t make decisions or rulings unless it has jurisdiction over you and your spouse. It gains jurisdiction over you when you meet residency requirements and file. It achieves jurisdiction over your spouse when he receives official and verifiable notice of the divorce so he has an opportunity to object to what you’re asking for. Both the Fifth and the 14th Amendments protect this right, called “due process.”
Using a Third Party
The sheriffs and constables in most states will serve your divorce papers on your spouse for you in exchange for a fee. Many states also allow you to hire a private process server. One advantage to this is that the sheriff is usually limited to business hours when trying to locate your spouse. A private server can do the job if your spouse can only be located in the evening or on weekends.
Serving Your Spouse Yourself
Some states, such as California, will not allow you to give your papers to your spouse yourself. However, others do and most will allow him to accept service in some other way so he doesn’t have to deal with a sheriff or private process server knocking on his door in full view of his neighbors. He can pick up a copy of your divorce complaint from your attorney, if you have one. You can also mail your papers to him in most states, though you might have to do so by certified mail, return receipt requested.
Proof of Service
After you achieve service on your spouse, you must be able to prove it for the court to have jurisdiction. In most cases, if you use the sheriff or a private process server, they will submit a proof of service to the court for you when they’ve successfully delivered the papers. If you mail or hand-deliver them to your spouse, include an acceptance of service form that he can sign, acknowledging that he received everything. Some states will accept the certified mail receipt with his signature on it. You must generally file the acceptance of service or the mail receipt with the court so your case can proceed.
If your spouse doesn’t want the divorce, it’s possible that he might dodge service. He doesn’t have to answer his door when the sheriff or process server shows up, and he does not have to sign for certified mail. If this occurs, the law provides for alternate methods of service, but they vary somewhat among states. Usually, you must petition the court for special permission to achieve service another way. In Maryland, proof that you mailed your papers to your spouse's last known address is acceptable, and you can also have your complaint delivered to any adult at his place of employment. Other states allow you to place a notice in the newspaper, telling him that you’ve filed for divorce, and others require a combination of these efforts. Check with the courthouse or an attorney in your state to find out what methods are available there.
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.