Anaya Nolan
Serving divorce papers is a formal method of delivering official copies of the divorce papers to your spouse. This can be done through a process server, who is authorised to hand-deliver the papers to your spouse. The server must be a neutral party, not involved in the case, and over the age of 18. The papers must be served within 60 days, and the server must complete a form to prove they delivered the papers. This can be done through hand-delivery or mail, and there are exceptions for military personnel and those who cannot be located. While family law differs from state to state, your mother-in-law cannot serve you divorce papers as she is a family member and a party involved in the case.
| Characteristics | Values |
|---|---|
| Who can serve divorce papers? | A "disinterested person" who is not a party in the case, not interested in the outcome of the case, and who is at least 18 years old. Family members and significant others cannot serve the documents. |
| How can divorce papers be served? | Divorce papers can be served by mail, email, social media, or text, or they can be hand-delivered. |
| What is required for proof of service? | A completed form and an Affidavit of Service or Proof of Service form stating when, where, and what documents were served. |
| What if the spouse cannot be located? | You can ask a judge to let you serve by publication or posting, or you can request permission for service by other means. |
| What if the spouse is in the military? | If your spouse lives on a military base, their commanding officer may be able to serve the papers. Different rules apply, so it is best to speak to a lawyer. |
| What if you cannot afford a process server? | Many states have a procedure to waive the sheriff's service fees for residents on public assistance programs. |
| What if both spouses agree on the divorce terms? | Some states allow both spouses to complete and sign a joint divorce petition, eliminating the need to serve divorce papers. |
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What You'll Learn
Who can serve divorce papers?
In most cases, divorce papers must be served by a "disinterested person", meaning someone who is not a party in the case, has no interest in the outcome, and is at least 18 years old. Family members and significant others are typically excluded from serving divorce papers. However, in certain jurisdictions, such as California, there may be exceptions where family members are allowed to serve the papers.
Divorce papers are typically served through personal service, where the defendant or spouse is served in person by a neutral third party. This person could be a friend, a hired individual, or a professional process server. The server must be an adult and must complete an Affidavit of Service or Proof of Service form, stating when, where, and what documents were served. This form is then filed with the court as proof of delivery.
If you are unable to locate your spouse or if they are evading service, you may request permission from a judge to serve the divorce papers by alternative means. These means could include serving through email, social media, or text messages, or by publishing the summons in a newspaper. The judge will determine the specific requirements for alternative service.
It is important to note that the rules and procedures for serving divorce papers may vary depending on your jurisdiction. Therefore, it is always recommended to consult with a lawyer or legal professional for specific guidance on serving divorce papers in your region.
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What is the process of serving divorce papers?
Serving divorce papers is a formal process with specific requirements. Here is an overview of the process:
Who Can Serve the Papers?
The papers must be served by a “disinterested person”, meaning someone who is not a party to the case, has no interest in its outcome, and is at least 18 years old. Family members and significant others are typically excluded from serving the documents. A neutral person or a professional process server can be hired to serve the papers, or in some cases, a sheriff may be able to serve them for a fee.
Methods of Service:
There are a few methods that can be used to serve divorce papers, and the specific rules may vary depending on the jurisdiction. Here are some common methods:
- Personal Service: This is the most common method. It requires a neutral third party, also known as a "server", to hand-deliver the documents to the recipient in person. The server must then complete and file an Affidavit of Service or Proof of Service form with the court, stating when, where, and what documents were served.
- Mail Service: In some cases, the papers can be mailed to the recipient's address, such as their home or work address, where they will receive and sign for them. This typically requires the recipient to sign a "green card" or a "Notice and Acknowledgement of Service" form.
- Substituted Service: If the recipient is difficult to locate or never available, substituted service may be permitted. This could involve leaving the papers with someone of “suitable age and discretion” who lives with the recipient or, in some cases, dropping the papers at the recipient's feet if they refuse to take them.
- Alternate Service: If the recipient cannot be located, the court may grant permission for alternate service methods, such as email, social media, text message, or publication in a newspaper.
Timeframe for Service:
There is typically a timeframe within which the divorce papers must be served. For example, in some jurisdictions, you have 60 days from the filing of the divorce papers to serve your spouse. If you cannot serve within this time, you can request an extension from the court before the deadline passes.
Response from the Recipient:
After serving the divorce papers, the recipient usually has a set number of days to respond, such as 30 days. If they do not respond within the given timeframe, the case can still often move forward, but it is important to follow the specific procedures to avoid dismissal.
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What is the cost of serving divorce papers?
Serving divorce papers involves notifying your spouse by delivering them a copy of the divorce paperwork. This is typically done by a 'disinterested person', meaning someone who is not a party in the case, has no interest in the outcome, and is at least 18 years old. Family members and significant others are therefore not allowed to serve the documents.
The cost of serving divorce papers can vary depending on the method chosen and the state in which the divorce is taking place. Here are some common methods of service and their potential costs:
- In-person service by sheriff or private process server: This method involves hiring a sheriff or a private process server to hand-deliver the divorce papers to your spouse. The fees for this service can vary depending on the state and the complexity of the case. For example, in Alabama, the filing fee is $200, while in Alaska, it is $321. The cost of hiring a private process server may be higher than that of a sheriff, as they may charge a fee for their services.
- Service by mail: In some states, such as California, you can serve divorce papers by mail if your spouse agrees to sign a form acknowledging receipt. This method typically involves sending the papers via first-class mail, along with a return envelope and a "Notice and Acknowledgment of Service" form. The cost of this method would include postage and any applicable fees for certified mail with a return receipt requested.
- Substituted service: If your spouse is difficult to reach or never seems to be home, you may be able to use substituted service, where the papers are delivered to someone "of suitable age and discretion" who lives with your spouse. This method may involve additional costs, such as court fees for filing a "Proof of Service" form.
- Service by publication: If you are unable to locate your spouse or they are evading service, you may request permission from a judge to publish the divorce summons in a newspaper or post it at the courthouse. This method may incur additional costs, such as advertising fees or court fees.
It's important to note that the costs outlined above are specific to serving divorce papers and do not include other divorce-related expenses, such as court fees, attorney fees, and retainer payments. These additional costs can vary widely depending on the complexity of the case, the attorney's hourly rate, and the level of cooperation between the spouses.
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What if my spouse cannot be located?
In most cases, your mother-in-law cannot serve you divorce papers. The papers must be given to your spouse directly or to someone "of suitable age and discretion" who lives in the same home as your spouse. The only exception is if your spouse authorizes, in writing, for another person to accept the papers.
If you cannot locate your spouse to serve them their divorce papers, you can request permission from the court to use an alternative method of service, such as publication in a newspaper or posting a notice in the courthouse. This is called a "Motion to Serve by Publication or Posting". The judge will only allow this if they are satisfied that you have made sufficient efforts to find your spouse and that they cannot be found. You must first try to locate your spouse and document your efforts. This includes mailing the divorce papers to their last known address, both via certified mail/return receipt and regular mail. You should also keep a list of the places you contact and any documents, print-outs, and returned mail that can help show your efforts.
If the judge approves your motion, they may specify which newspapers you must publish the notice in. You will need to pay to run the ad for a certain length of time, usually at least three weeks. After you have served notice by publication or other alternative means, your spouse may respond to the divorce petition. Depending on your state's laws, you might have to refile your petition or your case might be converted to a standard divorce. However, if you can now locate your spouse, you may be able to file an uncontested divorce if you can agree on all the issues in your divorce, such as property division, spousal support, and child support and custody.
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What if my spouse is in the military?
Generally, divorce papers must be served by a "disinterested person", meaning someone who is not a party in the case, has no interest in its outcome, and is at least 18 years old. Family members and significant others cannot serve the documents. However, there are some exceptions. For instance, the papers can be given to someone "of suitable age and discretion" who lives in the same home as your spouse. In such cases, you must convince the judge that your spouse lives with this person. Alternatively, if your spouse authorizes someone else in writing to accept the papers, that person can be served.
If your spouse is in the military, there are a few additional considerations and resources available to you:
- Free military legal assistance services are provided through installation legal assistance offices. These attorneys can advise on legal issues, including divorce and child custody, income taxes, the Servicemembers Civil Relief Act, and wills. They can also refer you to non-government civilian lawyer referral services.
- The Servicemembers Civil Relief Act (SCRA) helps protect the legal rights of service members on active duty. Under the SCRA, civil court or administrative proceedings may be extended or postponed if the service member is unable to attend due to duty. Service members may also be protected from default judgments for failure to respond to a lawsuit or appear in court.
- The Uniformed Services Former Spouse Protection Act is a federal law that provides certain benefits to former spouses of military members. An unremarried former spouse may receive medical, commissary, exchange, and theatre privileges under the Morale, Welfare, and Recreation (MWR) program if they meet certain requirements, such as being married to the military member for at least 20 years at the time of divorce and the military member having performed at least 20 years of creditable service.
- Military divorce laws allow service members and their spouses to file for divorce in the state where the service member claims legal residency, the state where they are currently stationed, or the state in which the non-military spouse resides. However, it is recommended to file in the United States, as a divorce filed overseas may not be recognized by U.S. courts.
- If you are living overseas, you should consider talking to a civilian attorney or the military legal assistance office, especially if you own property overseas.
- You may be able to negotiate moving costs as part of the divorce settlement, and the military may pay the moving expenses of the non-military spouse returning home from an overseas duty station.
- You can typically continue to receive health care benefits through TRICARE until your divorce is final. After the divorce, you may be able to buy temporary health care coverage through the Department of Defense Continued Health Care Benefit program.
- Each military service has policies requiring service members to support family members upon separation in the absence of an agreement or court order.
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Frequently asked questions
No. The divorce papers must be served by a "disinterested person", meaning someone who is not a party in the case and has no interest in the outcome. Family members are not allowed to serve the documents.
Anyone who is not involved in the case and is over 18 can serve divorce papers. This can be done through hand delivery or mail.
The cost varies depending on the state and county. In some states, the fee is set by state law, while in others, the sheriff of each county determines the fee. The average fee for a professional process server is estimated to be $75.
No, you cannot serve the divorce papers yourself. Another adult who is not involved in the case must hand your spouse a copy of the papers.
If you are unable to locate your spouse, you can ask a judge for permission to serve the divorce papers by publication or posting. You will need to provide proof that you have tried to locate your spouse and failed.
