When a court will not accept how divorce papers were served, your firm has to start service over. Service of process turns a filed petition into a case the respondent spouse has to answer.
Correct service delivers the summons and petition to the respondent through a person and a method the state allows. The server then documents the delivery in a proof of service. Depending on the state, the respondent may sign a waiver instead, and mail or publication may be available under conditions the state sets.
Service can get harder when the respondent has moved out of the marital home, avoids the server, or lives in another state. This guide explains how service works in a divorce matter, from filing through proof of service, and where it tends to go wrong. Attorneys and paralegals who arrange service can use it to avoid the pitfalls that can lead to a re-serve.
How Service Problems Can Delay a Divorce Case
Service of process gives the respondent formal notice of the divorce case.
Whether service meets the state’s requirements affects the case in several ways:
Another round of service: A serve the court will not accept means arranging new attempts or asking the court to approve a different method. Either step can push back the rest of the case schedule.
Default judgments: The method of service can decide whether a default is available, and a default that is not available can stall a divorce. Under New York state law, for example, a court cannot enter a divorce judgment on the defendant’s default unless the defendant was personally served or the summons was served by a court-ordered method and states “Action for a divorce” on its face. If service falls short of that standard, your firm may have to re-serve before the case can move forward.
Challenges to service: A proof of service and records of each attempt show who was served, when, where, and how. Those records give your firm support if the respondent later disputes service. Our guide to process serving in divorce cases explains how servers document attempts in these matters.
The Steps From Filing to Proof of Service
Divorce cases are filed in state court, and each state sets its own rules for serving the papers. The work still follows the same general sequence, and many of the same best practices for process serving used in other civil matters apply.
File the petition before arranging service
Service comes after filing. The respondent receives copies of the filed petition and the summons, along with any other documents the state requires to be served with them.
Use a waiver when the respondent cooperates
When the respondent is willing to cooperate, a waiver can take the place of formal service in states that allow one. The respondent decides whether to sign a waiver, and the state’s rules set what a valid waiver must contain.
For example, under Texas Family Code, a party to a divorce may waive service after the suit is filed by filing a waiver that acknowledges receipt of a copy of the filed petition, . The waiver must include the signer’s mailing address. It must also be sworn before a notary public who is not an attorney in the suit, unless the signer is incarcerated.
Arrange service through an authorized server
When the respondent does not waive service, the state’s rules control who may serve the papers. In California, for example, a summons may be served by any person who is at least 18 years of age and not a party to the action, under state law.
The state’s rules also set the method. Depending on the state and the respondent’s situation, service may happen in one of these ways:
Personal delivery: A sheriff’s office or a private process server hands the summons and petition to the respondent. Whether a sheriff’s office serves civil papers depends on the location.
Mail: Some states allow service by mail when the respondent signs for the papers. Under Michigan Court Rules, the summons and complaint may be sent by registered or certified mail, return receipt requested, with delivery restricted to the addressee. Service under that rule is made when the respondent acknowledges receipt of the mail.
Publication: When the respondent cannot be found, a state may allow notice to be published in a newspaper under conditions its rules set. Florida Statutes permits service by publication in an action for dissolution of marriage. The sworn statement filed by the petitioner or the petitioner’s attorney must show that diligent search and inquiry have been made to discover the respondent’s residence.
When your firm works with a process-serving provider, that provider assigns a server, coordinates the attempts, and returns the proof of service. Depending on the provider, it may also verify the respondent’s address before the first attempt and send status updates as attempts are made. Your firm still supplies accurate information about the respondent, decides how to proceed if an attempt fails, and files the proof with the court when the court requires it.
Serving papers in a divorce can also call for extra care when children may be present, when the respondent may be served at work, or when the server’s safety is a concern. If your firm knows about any of those circumstances, sharing them with the provider before the first attempt helps the server plan when and where to serve the papers. Our guide to process serving in divorce cases explains how servers handle those situations.
Steps to Help Ensure a Smooth Serve
Service in a divorce is easiest to defend when the server, the method, and the proof all meet the rules of the court hearing the case. Your firm can lower the chance of repeating a serve by confirming those rules when the case opens, giving the provider complete information about the respondent, and reviewing the proof before it is filed.
Partnering with a qualified litigation support service provider is also a smart step. Proceed’s Service of Process supports law firms in all 50 states through a national network of vetted, professional process servers with local expertise. We provide real-time status updates as each serve moves forward.
Contact us to discuss service of process for your firm’s divorce cases.
Frequently Asked Questions
What can your firm do when a spouse avoids service?
Start by identifying why the serve is failing, because evasion and an outdated address call for different responses. A spouse who is evading the server may be reached through attempts at different times of day. A spouse who has moved needs to be located before the next attempt.
When one of our attempts is unsuccessful, the process server documents what happened at the address, and we outline the available next steps. Those steps may include verifying the respondent’s address or making additional attempts timed for early mornings or late afternoons. If the address is outdated, your firm can request our Skip Tracing to locate a current one. If the respondent still cannot be served, your firm decides whether to ask the court to approve an alternative method, such as publication where the state permits it.
How long does it take to serve divorce papers?
There is no fixed completion time because it depends on how quickly the respondent can be found and served. With our normal service, the first attempt is typically made within 24 to 48 hours after we receive the documents. With rush service, the first attempt is typically made within 24 hours.
We complete 85% of our serves on the first attempt. An outdated address, a respondent who avoids the server, or the need for a court-approved alternative method can add time after the first attempt.
Can your firm arrange service on a spouse who lives in another state?
Yes. Proceed’s Service of Process covers all 50 states, so a local process server in the respondent’s state can make the attempts while your firm manages the case where it was filed. The method still has to satisfy the rules that govern service in the divorce, so your firm confirms which methods the court hearing the case will accept. Our guide to serving court documents in another state explains out-of-state service methods in more detail.
What should your firm include in a request to serve divorce papers?
Include the filed documents to be served and everything your firm knows about where and when the respondent can be found. A complete request includes the respondent’s full name and current or last known address. If the address may be outdated and your firm requests our Skip Tracing, details such as a previous address, date of birth, phone number, email address, or relatives’ names can improve its speed and accuracy. When your firm places a service of process order with us, our team reviews the details to confirm the information is complete before service begins.
