One of the first legal steps to ending your marriage is to serve your spouse with divorce papers. The exact requirements for this procedure, called "service of process," vary from state to state. The purpose is to notify your spouse that you're filing for divorce and to give your spouse a chance to respond. Here's an overview of the process and tips for encountering challenges like an absent or uncooperative spouse.
What Are Divorce Papers?
In most courts, to start the divorce process, you must file:
- a divorce petition (sometimes called a "complaint for dissolution of marriage"), and
- a summons.
The petition lays out the legal grounds for the divorce and asks the judge to make orders about spousal support, property division, and child custody if necessary. The summons tells your spouse that a court case has started and how and when to respond.
Serving your spouse is a legal requirement and you must do it correctly or risk having your divorce case delayed or even dismissed.
Common Ways to Serve Divorce Papers
You can properly serve your spouse with divorce papers in a few different ways.
Personal Service
The best type of service is called “personal service.” Personal services is what it sounds like—delivering the divorce paperwork directly to your spouse. The important thing to remember about personal service is that you can't be the person who delivers the paperwork. Instead, you need a "process server" to do it for you. Possible process servers include:
- someone from your local sheriff's office
- a professional process server (someone who serves legal papers for a fee), or
- an adult friend or family member who isn't involved in the divorce (in some states).
Ideally, your process server will hand deliver the documents to your spouse, your spouse will sign a form acknowledging receipt of the divorce papers, and the process server will file the acknowledgment with the court to prove that your spouse has been served. If your spouse won't acknowledge service, the process server will have to complete and file a declaration under penalty of perjury explaining how and when the papers were served.
Substituted Service
In addition to personal service, some states also allow “substituted service.” Substituted service involves a process server (not you) delivering a copy of the divorce paperwork to an adult who lives with your spouse or a supervisor at work and also mailing a copy to your spouse at the address where the papers were left. Courts typically allow substituted service after a few attempts at personal service fail.
Before attempting substituted service, check with your local court clerk’s office or an attorney to find out if it is allowed where you live and the exact requirements.
Service by Mail
Some states allow process servers (again, not you) to serve documents by certified mail with a return receipt. Your spouse will have to sign for delivery and the post office will mail you a copy of the signed receipt. This method works best when you and your spouse are communicating and you know they will sign the return receipt.
What Happens If I Can't Find My Spouse?
If you have a hard time locating your spouse to deliver the divorce papers, you can ask the court for permission to serve your spouse by publication. You or your attorney will usually have to prove that you've made a real effort to find your spouse's current home or work address. If the judge believes you’ve been diligent in your efforts to find your spouse, the court will issue an Order for Notice by Publication.
Your next step is to publish a notice of your divorce lawsuit in a court-approved publication, typically a local newspaper. Your local court clerk’s office can point you in the right direction, and some clerks’ offices will even publish the notice on your behalf if you complete a form and pay a nominal fee. The notice must run in the paper a certain number of times over a certain number of weeks. Your spouse will then be given a certain amount of time to file a response to the divorce petition (usually 30-60 days). After the waiting period, your case will begin even if your spouse has failed to respond.
With the number and popularity of local newspapers decreasing, some judges have allowed service through alternate means, such as:
- fax
- text message, and
- social media.
The more effort you’ve put into finding your spouse, the more likely it will be for the judge to grant your motion to serve by publication or alternate means.
Do I Need to Hire a Lawyer?
You are not required to hire a lawyer to handle your divorce, including serving your divorce papers. If you do, the attorney will handle the details of filing documents with the court and serving your spouse. If you don't want (or can't afford) to hire an attorney, most courts have Self-Help Centers that provide legal information and resources to people without a lawyer.