Service of Process for a Divorce Complaint

Once the divorce complaint has been filed, it must be served on the defendant. This notifies the defendant that a legal action has been taken against him or her. The plaintiff is legally required to ensure the defendant is properly served a copy of the filed divorce complaint and the divorce summons. This is known as service of process (1).

The Divorce Summons

The legal document by which the court asserts its jurisdiction is generally referred to as “process.” Usually a summons acts as the process document for a divorce case (2). A summons informs the defendant that there has been a legal action taken against him or her. In a divorce case, the court issues the summons to the plaintiff after filing the divorce complaint. The plaintiff must then complete the summons and serve it upon the defendant along with a copy of the divorce complaint. One may wish to consult a divorce attorney to assist in completing the divorce summons (1).

Service of Process Methods for a Divorce

Each jurisdiction has its own rules regarding the proper method for service of process in a divorce. The most common method is by personal service. This means that the plaintiff serves the defendant by personally delivering the divorce papers. The plaintiff's attorney may also serve the divorce complaint and summons on the plaintiff's behalf. Some jurisdictions allow service by leaving the divorce documents at the defendant's place of residence. Most states require the documents be left with a competent adult. Usually, the service must be made by an adult who is not a party to the divorce action. Some states allow service via certified mail. For an out-of-state defendant, most states allow service to be made by a nonresident by the same methods normally available in the defendant's home state. However, due to the wide variety of rules of each state, it is advisable to consult a divorce attorney to ensure the proper method for service of process (1).

Proof of Service in a Divorce Case

After serving the defendant, the plaintiff must certify when, where, and how service of the divorce documents was performed. This is referred to as proof of service. This documentation serves as evidence that the defendant had indeed been served the divorce complaint and summons. The proof of service may be located on the back of the court-issued summons or it may be drafted as a separate document (1).

If you are the plaintiff, you may be able to perform service of process on your own. However, you should contact your local family or divorce court division to ensure you are following the proper procedure. You may also consider consulting a divorce lawyer for assistance. Once service of process has been completed the next step in the divorce process is the defendant's response.

Sources:

(1) Family Law for Paralegals by J. Shoshanna Ehrlich, published in 2005.
(2) The Free Dictionary: Service of Process: http://legal-dictionary.thefreedictionary.com/Service+of+Process

Filing a Divorce Complaint

After drafting the divorce complaint, it must be filed at the appropriate court division. Many jurisdictions have a special division that handles family law cases, such as a divorce action. A divorce complaint form may be ordered online or obtained at the courthouse. The plaintiff must ensure that all necessary accompanying documents are included, such as a marriage certificate. The court clerk will then review the divorce complaint to ensure it has been filled out adequately. Filing for a divorce can usually be done either in person or by mail (1).

Docket Number for Divorce Case

Once the court clerk has accepted the divorce complaint, he or she will assign the divorce case a docket number. It is important to record this docket number for future reference. The docket number will be used on all later divorce case documents. You may also need your docket number in the future if you need to contact the court for additional questions regarding your divorce case (1).

Venue for Divorce Case

When filing a divorce complaint, you must ensure you are filing with the correct court division. The proper venue for filing will be a court which has subject matter jurisdiction over divorce actions. Venue rules will vary from state to state, therefore it may be beneficial to consult a divorce lawyer to determine which court division is the correct venue. Usually, a divorce action should be filed where either the plaintiff or defendant lives or where the cause of action arose. Various other factors, such as where the children reside or where the spouses last lived together can play a role in determining the proper divorce venue (1).

Filing Fees and Fee Waivers for a Divorce Complaint

The court will charge a filing fee for a divorce action in most states. These filing fees help cover court administrative costs related to processing your divorce. However, states are required to allow low-income divorce plaintiffs to apply for a waiver of the filing fee. This ensures everybody has access to divorce courts. Some qualified plaintiffs may be eligible for the state to pay for costs related to service of process and even costs related to discovery. You may need to consult a divorce lawyer in order to determine if you qualify for fee and costs waivers related to your divorce case (1).

Filing for a divorce can be complicated in some cases. Many times it is unclear which is the proper venue to file the divorce complaint. Additionally, each state has its own rules regarding which accompanying documents are required. After the divorce complaint has been filed, it is the plaintiff's responsibility to ensure that the a copy of the divorce complaint is served properly to the other spouse (2). It may be in your best interest to hire a divorce attorney in order to file your divorce case correctly.

Sources:

(1) Family Law for Paralegals by J. Shoshanna Ehrlich, published in 2005.
(2) FindLaw: Filing and Serving the Divorce/Dissolution Petition: http://family.findlaw.com/divorce/divorce-process/divorce-filing.html