Serving Your Spouse Divorce PapersBy Moskowitz Law Group, LLC |
Serving your spouse divorce papers is an important part of the process and it is crucial to understand how it works. You will need to file paperwork with a judge to get divorced, whether you already have a signed, written agreement with your spouse, want to mediate to try to come to an agreement, or go straight to court. Even if you do not want to talk to your spouse, the law compels you to notify them of the divorce through what is known as a “service of process.”
What Does It Mean to Serve Divorce Papers?
In divorce cases, every state requires one spouse to give the other a copy of all complaints, petitions, and motions. These documents are known as “court process” or “legal process.” Each state has its own rules about when and how these documents must be delivered. “Service of process” or “service” refers to providing documents to the other party in the way required by law. Courts need service of process to ensure that both spouses are aware of the divorce proceedings and have the opportunity to respond to and participate in them.
The summons and complaint for divorce are usually the first documents filed in a divorce proceeding (also called a “petition”). The complaint is the document in which you request that the court grant your divorce, split your marital property and debt, determine child custody and visitation, and calculate child and spousal support. In the summons, the non-filing spouse is notified of which court will hear the case and how to respond to the complaint.
The clerk will keep a copy of your divorce complaint and give you an official stamped copy with a docket number to serve upon your spouse. It is your legal responsibility to serve this paperwork on your spouse.
How Attorneys Are Involved
You are not obligated to employ an attorney to represent you in your divorce proceedings. However, if you hire a divorce attorney, they can handle the technical aspects of filing documents with the court and serving your spouse. Your attorney will usually bill you for the filing fees and the cost of serving the documents through a professional process server. Although you will be charged for their time spent preparing and filing the paperwork, you will avoid the inconvenience of actually filing the paperwork and locating someone to serve your spouse.
Another advantage is that you also will not have to worry about incorrectly filing or serving the documents, because your attorney will be familiar with all of the relevant rules.
How to Serve Divorce Papers
The paperwork should be delivered by hand. If it is delivered by hand, the person who served the paperwork must sign an affidavit of service, which is a document in which the person states under oath and penalty that they successfully handed your spouse the paperwork. This document must be filed with the court so the court has proof your spouse was successfully served.
A proper affidavit of service includes:
- The process server’s name
- The date and time of service
- The name of the court documents delivered
- A statement swearing to the accuracy of its contents
Additionally, the process server should sign the affidavit of service.
Alternatively, your spouse may agree in advance to accept service of the paperwork by mail or email and sign a document called an “acknowledgment of service.” Your spouse’s signature serves as proof that they have been served; you will submit this proof directly to the courts. Be sure to make a copy for yourself before you deliver it to the court.
Are Notaries Necessary?
Whether or not your affidavit of service must be notarized is a matter of state law. Most states, including New Jersey, do not require notarization of the process server’s signature because the document is signed under penalty of perjury stating that the information on the record is accurate.
When Spouses Cannot Be Located
The filing spouse must make every effort to locate and serve the other spouse. However, if you cannot find your spouse or they are avoiding service on purpose, you can file a motion with the court for permission to serve your spouse another way. The court calls this “service by court order” or “substituted service.”
By filing a motion and an affidavit of diligent inquiry with the court, you can request an alternative method of service. The motion and affidavit will detail how you have tried to locate and serve your spouse.
If your motion demonstrates that you have done all you can to serve your spouse, the judge will sign an order permitting you to serve them using alternate methods. The judge’s detailed directions on how to serve your spouse will be included in the order.
The Most Common Alternative Means of Service
Alternative means of service is most commonly provided through publication. You will have to follow your court’s guidelines, but in most cases, you have to publish notice of the divorce in a local newspaper. The timeframe in which the information must be published will be specified in the court order. You will have to place and pay for the ad, but you may generally ask the court to order your spouse to refund you later. If you cannot afford to place an ad, inquire with the court about other choices; the court may allow you to display the notice at the courthouse where you filed for divorce instead.