Can I give my spouse our divorce documents, or do I have to hire a process server?

Question:

Can I give my spouse our divorce documents or do I have to hire someone to deliver them?

Answer:

In all states, the spouse asking for a divorce must file a divorce petition (or complaint) with the local court and complete “service of process,” by making sure the responding spouse receives copies of the divorce paperwork. Providing your spouse notice of the divorce is essential: if you don’t serve your spouse, the court can’t issue any orders and can ultimately dismiss your case.

Many spouses wonder if they can just hand their spouses the divorce paperwork. In most states, the answer is no, you may not deliver your own divorce papers. Typically, you’ll need to ask a third person—someone not involved in the divorce case—to serve your spouse.

For example, in California, the person who serves a divorce complaint and summons is called the “server” or “process server.” You don’t necessarily need to hire a professional process server, however. The server can be:

  • a friend, relative, or coworker
  • a county sheriff or marshal
  • a professional process server, or
  • anyone over 18 who isn’t part of the divorce case.

In all cases, the server must:

  • be 18 years old or older
  • not be a party to the case
  • serve the paperwork to your spouse in the time required
  • fill out a proof of service form that tells the court who was served, when, where, and how, and
  • return the proof of service to you so you can file it with the court (or file it for you).

If you and your spouse have already discussed your divorce, and you plan to work jointly on your case, you may be able to work out an agreement for your spouse to accept the divorce petition and summons from a mutual friend, relative, or someone else you know. If so, you can agree on a time and place for the third person to serve your spouse. This is often a much better option than having someone jump out of the bushes and surprise your spouse at work or another public place, which may cause embarrassment and resentment.

You may also ask your spouse to accept the complaint and summons by mail. If your spouse agrees, the server can mail the documents along with a “Notice of Acknowledgement and Receipt” (NOA), which is a form your spouse must complete, sign, and return to your server. The NOA tells the court that your spouse received the divorce paperwork. The server must then file the proof of service and NOA with the court.

If your spouse is highly contentious or doesn’t agree to the divorce—or if you no longer communicate— you will probably have to hire a professional server to deliver the paperwork. If you’re already working with an attorney, your lawyer can recommend a process server and make sure your documents are properly filed and served. If not, you may want to ask a local court clerk, family court services, a court self-help center, or a local bar association for more information on serving your spouse or for a referral. The process server will charge a fee—usually between $100 and $300—depending on the number of attempts and work involved in locating your spouse.

You’ll need to provide the server with your spouse’s last known address, a work address, and the address of other places your spouse frequents, like a gym or community club. You should also provide a few recent pictures, so the process sever will recognize your spouse. Once your spouse is served, the process server will create a “Proof of Service,” which must be filed with the court.

A process server will usually make between three and five attempts. If your spouse is difficult to find or is hiding and evading service, then you may have to ask a court to allow you to serve your spouse by publication—which is where you post a notice of the divorce in a local newspaper.

Serving your spouse may take only one attempt, or it may take weeks, which will cost you time, stress, and money. In many divorce cases, it can be a good idea to find a way to work out a mutually convenient way to serve your spouse, so your spouse isn’t blindsided by the divorce or caught off guard by a stranger trying to deliver the bad news.

On the other hand, if you already know your spouse won’t accept service or you have specific reasons for keeping the divorce from your spouse, a professional process server can help you once you’re ready to file and serve your petition.

If you have questions, you should contact a local family law attorney for advice.

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