A divorce requires that the person filing for divorce give notice of the action to the other party, who is called the defendant or respondent, depending on the state. The due process clauses in the Constitution require the defendant to have notice of a legal proceeding and the right to be heard. These requirements in divorce proceedings mean the defendant must be served with divorce papers. Serving divorce papers must be done properly before a court can hear the case and grant a divorce.
What is a divorce process server?
A professional process server is someone who delivers the papers in a court case. He or she has been trained to deal with difficult people. He can locate people who try to avoid service. He knows the rules about service including what can be done, what can’t be done, and what must be done. Each state has different requirements and he has to follow the state’s rules.
In a divorce, process servers serve the summons and complaint or petition, depending on the state. They can also provide other services, such as surveillance and locating people who have been missing for a long time. Some process servers are licensed. Nine states require licensing while Florida, New York, and Missouri require licensing only within certain areas of the state. Other states require process servers to complete courses before they can serve process, including the ability to serve divorce papers.
Why is using a process server important in divorce cases?
Service of process in a divorce case is best handled by a divorce process server because he knows how to do proper service and how to handle sensitive situations. Some process servers will contact people to arrange serving them at home, so they are not embarrassed at work. Process servers know how to get difficult people served.
Hiring a process server is important so that improper service doesn’t happen. A process server knows the rules for serving divorce papers in the state. This includes properly filling out an affidavit of service after service has been completed and filing it with the court clerk. It also includes serving during the proper days and times. Some states do not allow service on holidays or Sundays. If service is done improperly, the case cannot proceed and will have to be started again.
Divorce process can be more difficult than other types of service because it involves people who are emotionally charged and who may do anything to avoid service. Someone who is not a process server will not know how to get the papers into the defendant’s hands, but a process server will. He will know alternate methods of serving divorce papers where there is an uncooperative defendant.
Typically a process server will file the papers with the clerk’s office, and this is what starts the action. When you file for divorce, you want to make sure it is done properly because the server may have to testify in court about how service was done.
Who can serve divorce papers?
While it is advisable to use a process server in divorce cases, other people can serve papers but they must know when, how, and must prepare and file the Affidavit of Service. In most states you cannot serve your own papers. Usually anyone more than 18 years old and not a party to the action can serve papers. In some states, friends and relatives can serve papers, while in other states they cannot.
In some states, a sheriff, marshal, or constable can serve papers. Some states require court approval if the person is not a process server.
How are divorce papers served?
The best form of service is personal service, which is in-hand delivery. This type of service is difficult to challenge in court. In many states, personal service has to be attempted a number of times before other methods of service can be used.
If personal service cannot be done, substituted service may be permitted. Substituted service usually includes leaving the divorce papers with someone of suitable age and discretion at the defendant’s house or, in some states, at his place of work. The papers must also be mailed to the defendant’s last known address, and the envelope needs to be marked personal and confidential.
Some states permit service by certified mail with return receipt. Some states allow the papers to be attached to the door with a copy mailed to the last known address. This is called nail and mail service, but it’s valid in many states. In some states you need court permission to use any form of substituted service.
If these methods are ineffective, most states require court permission to do service by publication in a newspaper. This can be expensive because it has to be done for several weeks. It is unlikely the defendant actually sees the notice, but it is valid service if approved in advance by a judge.
Serving divorce papers has to be done properly or you’ll be back to square one and will have to file new papers and pay an additional filing fee. Using a process server can avoid the mistakes that inexperienced people make. Your divorce action is important to you and service must be done to start the action. A process server will get the job done and will get it done correctly.
When you are ready to get an uncontested online divorce, LegalZoom will help you. You answer questions about your uncontested divorce in our online questionnaire, and we’ll assemble all of the legal paperwork you need. We include step-by-step instructions for how to file the divorce paperwork in your state.
