In divorce proceedings, one spouse petitions the court for a divorce and the other spouse responds to the petition. The spouse who files for divorce becomes the petitioner and the other spouse becomes the respondent. The filing spouse must notify the other spouse of the pending divorce action, provide him with a copy of the documents filed with the court and allow him 30 days to respond. The formal notification process is called service of process. Court rules for service of process vary from state to state. In California, service can come in various forms: personal service, service by mail or substituted service. Courts require the petitioner to provide proof of service in order to continue the proceedings.
Types of Service
Divorce papers can be served on the other party through service of process, that includes personal service or service by mail. Personal service means an individual personally delivers a copy of the court papers and blank response forms to the other party. Service by mail means an individual mails a copy of the court documents, blank response forms and two Notice and Acknowledgement of Receipt forms on the other party. The responding spouse signs the Acknowledgment, confirming receipt of the court documents, and returns one copy to the server to file with the court. Substituted service means an individual personally delivers or delivers by mail a copy of the court papers and blank response forms to a party other than the spouse, usually at his place of residence or employment, when several attempts to serve the spouse directly have been unsuccessful. If a spouse resides out of state, service may be made by certified mail, return receipt requested, if permitted by the court.
Who Can Serve
Personal service or service by mail must be performed by a person 18 or older who is not a party to the action. Parties in a divorce include the two spouses or domestic partners. Although children of the marriage are not legally named as parties, they can be considered part of the pending action. Therefore, an adult child of the marriage should not serve any court papers on either parent. However, other family members, friends, legal secretaries, service processors and county sheriffs can serve court papers on the other party. County sheriff's deputies and service processors charge various fees for service, typically based on travel time and distance.
Proof of Service
California courts require proof of service to be filed with the court clerk's office in order for the divorce proceeding to continue. The serving party must prove that the papers were properly served, with an affidavit signed by the person who hand-delivered or mailed the documents. If the respondent spouse refuses to sign, the papers need to be delivered by personal service. If attempts at personal service fail, substituted service may be made or the court may approve service by publication.
Service by Publication
If the other spouse attempts to avoid service, or her whereabouts are unknown, the serving party may request service by publication. Before allowing service by publication, the court requires the serving party to show that several attempts to serve the other party were made and failed. Professional service processors or sheriff's deputies routinely provide a signed affidavit including the date and time of each attempt of service and a detailed description of the circumstances.
The petitioner must also prove that he made a diligent search to find and serve his spouse. A diligent search potentially includes inquiries at the spouse's last known address, post office for a forwarding address, department of motor vehicles for a current address, and friends and relatives for a current address.
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- California Courts: Service of Process
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- Legal Action Workshop: When You Are Served With a California Divorce, Don’t Run!
- Michigan Bar: Ten Things I Wished Service Processors Knew
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