Legal Topics > Landlords & Rental Property Management > Evicting a Tenant or Ending a Lease >

To evict a husband and wife, do I have to serve both?

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Question:

I am a landlord who is trying to evict two tenants, a husband and wife, for nonpayment of rent. The process server has tried for two weeks to serve them, but they do not answer the door or go outside. Finally the server was able to serve the husband at his place of work. My attorney says he is going ahead with the court date even though the wife-defendant was not served. Do you think this is wise? If I win the case, won't I only just be able to evict him? Also, what can one do if you cannot serve a defendant?

Answer:

Every state has procedures for serving defendants who are hard to find or crafty at avoiding the process server. You're lucky that the server was able to find the husband at work. When process servers can't physically locate and approach a defendant, they often use an alternate system, known as posting and mailing, colloquially referred to as nail and mail.

Chances are that physical service on one spouse will suffice as to service on the other in this situation -- that is the rule in most states. However, emphasize this concern to the lawyer you have hired. Your lawyer should know that the whole lawsuit will be in peril and subject to being thrown out if the service is not accomplished according to the letter of the law.

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