Can a Divorce Be Contested If Not Properly Served?
By Teo Spengler
Updated March 30, 2020
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For a court to have jurisdiction over a person who is sued, the law requires that the person receive notice of the lawsuit, called service of process. If you find that your spouse was awarded a divorce but you were never served with process, you can contest the divorce.
Notice to the Defendant Spouse
A family law judge does not have legal authority to enter an order terminating your marriage, if you were not given notice of the action. This restriction ensures that both spouses have a chance to appear and present their version of the facts of the case before the marriage is dissolved, permanent child custody is awarded and finances are divided.
About the Service of Process
Notice of a lawsuit involves more than simply hearing about it; generally, service of process rules require that the summons, petition or complaint has been delivered into your hands, and this is called personal service. If it can be shown that various attempts were made to serve you personally, the court may allow a different type of service such as leaving the documents with your boss at work or with an adult who lives with you. If your spouse in unable to locate you, the court may authorize service of process by publication in a local newspaper.
Contesting the Divorce
You can determine which type of service was used in the divorce case by looking in the court file for the proof of service of process. If you establish that you were not served process appropriately under the rules of your jurisdiction, you can ask the court to set aside the divorce judgment. The type of motion or procedure you need to bring varies among the states, and you may want to seek assistance from an attorney.
From Alaska to California, from France's Basque Country to Mexico's Pacific Coast, Teo Spengler has dug the soil, planted seeds and helped trees, flowers and veggies thrive. World traveler, professional writer and consummate gardener, Spengler earned a BA from U.C. Santa Cruz, a law degree from Berkeley's Boalt Hall, and an MA and MFA from San Francisco State. She currently divides her life between San Francisco and southwestern France.