By Anna Kennedy – Law Clerk at Felt Family Law & Mediation
All contested divorce or child custody cases start with one vital step: serving the Petition to the other party, which means sending the other party an official copy of the Petition for Divorce or Petition for Custody. “Service process” is the legal procedure for letting another person know they are being sued in court.
The person who files the divorce or custody lawsuit is called the “petitioner” and the person responding or answering the petition is called the “respondent”. In order to start the case properly, the petitioner must serve the divorce or custody papers on the respondent, usually through a person called the process server.
WHO CAN SERVE:
A frequently asked question about service is “Can I give the divorce or custody papers to my ex?” You can – but just giving your ex the papers by yourself is not enough to officially start the case. For official service process, the papers must be served by someone who is (a) at least 18, (b) not a party to the case (so not you, and often not your immediate family members), and (c) not a felon. If you are either the petitioner or respondent, you cannot be the person to give the papers to the other party.
The most common people who serve divorce or custody papers are attorneys, sheriffs, sheriff’s deputies, United States Marshals, or constables. Attorneys and parties often use a “process server” or someone they can hire to serve your ex (you know, like “knock knock, you’ve been served”). Most process servers charge a fee for service process, which can range from $45-$75 for local service to several hundred dollars for out-of-state or remote locations.
If you want to skip the fee, a family member or friend can serve your ex, as long as they meet the requirements of over 18, not a party to the case, and not a felon. They will need to fill out an affidavit of service, certifying when and what date, how, and to whom they served the papers. The signed affidavit of service should be filed with the court soon after the service process is complete.
WHO TO SERVE:
You can serve either the respondent themselves or their attorney if they retain one. You can also serve anyone who lives at the same residence as the respondent, as long as they are 18 years or older. The name of the person served, and their relation to the respondent, should be stated on the Affidavit of Service.
WHAT TO SERVE:
You must serve the complaint and summons that were filed with the court, whether they’re divorce papers, custody papers, parent-time orders, child support papers, or enforcement orders. They all must be given to the respondent.
Depending on the case, you may also serve with the petition a motion for temporary orders, supporting declarations or affidavits, notices about discovery and mediation requirements, and other documents from your attorney or from the court. Each of the documents served should be listed on the Affidavit of Service.
WHEN TO SERVE:
Your ex must be served within 120 days (4 months) of filing the divorce or custody papers. Sometimes, the service process can occur even before filing. First, give a copy of the complaint and summons (as well as any other necessary documents) to the other party and then file those same papers and the Affidavit of Service with the court no more than 10 days after the service process.
WHERE TO SERVE:
Typically, serving the respondent at their address is sufficient. You can also serve them at their place of employment if you don’t know their current address. If your ex moved out of state, the same still applies. However, the service process can be very complicated when someone moves out of the country. Contact an attorney or a United States Marshal for help then.
WHY SERVE:
Service Process is important for both your case and the courts. In order for a contested divorce or child custody case to be fair, every person involved has to know about the case and be able to respond in some way. The courts can dismiss any case if the other party does not know about it. So, to make sure the divorce or child custody case will go forward in court, make sure the service process is done right.
HOW TO SERVE:
There are two ways to serve someone. First, serving them personally by putting the papers in your ex’s hands. Second, mailing the summons and complaint to them. Each has its own set of rules.
Personal service: The process server will deliver a copy of the documents personally to your ex. That could mean putting the papers in the ex’s hand at their house, their place of employment, or even at the scene of a car accident. It could also mean leaving the papers at the ex’s house or residence with another adult. If your ex is in jail or prison, call the facility and ask the about their personal service process. The facility will probably charge a service fee for the in-person service.
Mailed Service: In some cases, the papers can be mailed through either the United States Postal Service or a commercial mail courier. When sending papers by mail or courier, make sure to get a receipt, and make sure the mail service used has the respondent give a receipt of delivery. Attach those receipts to the Affidavit of Service. Mailed service is valid in any state. It is also valid in some foreign countries as long as internationally registered mail is used.
What if you can’t find your ex or your ex is avoiding service? First, try every possible option. If that fails, then file a motion for alternative service with the court. In that motion, lay out everything you have already tried and tell the Court what options for service would be effective and why. The court will need to order which alternative service process should be undertaken. Then, follow the Court’s order of alternative service and file the proof of service accordingly.
As always, if you have specific questions about or need help with the service process, contact a knowledgeable divorce or custody attorney near you.
