How to Serve Divorce Papers

No matter whether you mediate or head straight to court, you'll need to file paperwork with a court to get divorced. Although you might not want anything to do with your soon-to-be-ex, the law requires you to notify your spouse about the divorce case through the procedure most states refer to as "service of process."

What Does It Mean to "Serve" Your Spouse With Divorce Papers?

In every state, spouses who file for divorce must provide a copy of all the documents they file in court to the other spouse. Each state has its own requirements about when and how documents must be delivered. Delivering the papers in the manner required by law is called "service of process" or "service."

By requiring service of process, courts ensure that both spouses know about the divorce case and have a chance to respond to and participate in the proceedings.

What Documents Do You Need to Serve on Your Spouse?

In most courts, the documents you file to begin the divorce case are the summons and complaint (called a "petition" in some states). The complaint is a request that a judge grant your divorce, divide your marital property and debt, decide child custody and visitation, and determine spousal support. The summons notifies the non-filing spouse that the divorce case has started and what can happen if they don't file a timely response.

When you file the divorce summons and complaint, the clerk will keep a copy and provide you with an official stamped copy to serve on your spouse. It is your responsibility to serve the documents on your spouse in the manner required by state law, including filing a written proof of service with the court.

Serving Other Documents During the Divorce

The requirement to serve your spouse doesn't end after you've served a copy of the summons and complaint—you must continue to serve your spouse with a copy of everything you file in court. For example, you'll likely have to serve your spouse with certain financial disclosures about your income and assets and if you ask for temporary orders on issues like spousal and child support, you'll have to serve your spouse with a copy of your "Request for Order."

In some courts, you might not have to hand-deliver documents filed after the summons and complaint to your spouse. Many courts allow some later-filed documents to be served by mail. Your court might even have a procedure that allows the parties to agree to electronic service. Check with the court clerk to find out what the procedures for service are in your court.

Who Can Serve Divorce Papers?

Every state allows several possible methods for serving your spouse. Usually, you'll have to find a "process server" to deliver the divorce papers personally. A process server is someone who is not involved in the divorce and who is at least 18 years old.

Possible process servers include:

• A sheriff's office. Check with the local sheriff's department to see if it will serve your spouse—most sheriff's offices offer this service for a fee. Many charge based on the mileage the sheriff must travel to serve the documents, and will charge an extra fee for each attempt at service. If you're not sure where your spouse can be served, though, the sheriff might not be your best choice—most sheriff's offices require you to provide a definite address where your spouse will be. Also, your spouse must be located within the sheriff's jurisdiction.
• A professional process server. You can find a professional process server by searching online or using the National Association of Professional Process Servers' directory. Process servers usually charge more than the sheriff's office to serve documents, but are better equipped to deal with situations where you aren't sure of your spouse's location. Process servers also often complete service faster than the sheriff's office, so they're a good choice if you're facing a tight service deadline.
• A friend or family member. As long as the person isn't involved in the divorce, you can have a friend or family member act as your process server and save yourself the expense of having to pay someone. You'll have to make sure the friend or family member closely follows all state and local rules regarding service, though, or risk having to start the process over.

How Do I Serve My Spouse?

Typically, you'll use a process server (as discussed above) to deliver the necessary documents to your spouse. After completing the personal service, the process server will complete and file a "proof of service" detailing how, when, and where they served the papers.

Some states allow you to serve the divorce papers by certified mail (with a return receipt) or another delivery service that requires a signature when the package is received. But if your spouse refuses to accept the delivery and sign the form, you'll have to stick with personal delivery by a process server. Depending on your state, you might also bypass formal service of process entirely (more on that below).

Can Your Spouse Agree to Waive Service of Process?

In some states, you might be able to simply give the divorce papers directly to your spouse (by mail or in person), as long as your spouse is willing to accept the documents and sign a waiver or acknowledgment of service. You'll then need to file the signed form with the court.

Depending on the rules in your state, your spouse may need to sign the form in the presence of a notary. Also, this waiver of service might only be available in uncontested divorces or when you don't have a lawyer.

Another way to avoid service of process in some states is to file a joint divorce petition with your spouse along with your signed, comprehensive divorce settlement agreement. A joint petition streamlines the uncontested divorce process, including by waiving the need for service of process. You and your spouse are co-petitioners: Neither of you can deny knowing about the proceedings when you file jointly and neither of you has to file a response, so service isn't necessary.

Can I Get a Divorce If I Can't Find My Spouse?

When you're filing for divorce, you must do everything you can to find and serve your spouse. However, if you can't locate your spouse, or your spouse is purposely hiding or avoiding service, you can ask the court for permission to use another method of service.

You or your lawyer will have to file a motion and affidavit of attempted service with the court. The motion and affidavit will explain what efforts you've made to personally serve your spouse. If your motion demonstrates that you've made your best efforts to serve your spouse, the judge will sign an order allowing you to use "substituted service" or "alternative service." The order will contain the judge's specific instructions on how to serve your spouse. You must follow the instructions closely.

Substituted Service

Substituted service typically involves a process server (not you) indirectly delivering a copy of the divorce paperwork through an adult who lives with your spouse, a court-approved friend or family member, or a supervisor at work. Courts typically allow substituted service after a few attempts at personal service fail. Before attempting substituted service, check with your local court clerk's office or an attorney to find out if it is allowed where you live and the exact requirements.

Alternative Service

The most common method of alternative service is by publication. You'll need to follow your court's service by publication rules. Historically, courts have required the filing spouse to publish notice of the divorce in a newspaper where the other spouse is likely to see for a certain amount of time. If you can't afford to place an ad, ask the court what other options you might have—the court might allow you to instead post the notice at the courthouse where you filed for divorce.

With the number of print newspapers dwindling across the country, it's become more common for courts to allow other forms of alternative service. Some forms of service that courts have allowed include:

• posting on social media
• sending by email
• sending by fax
• posting on the court's website
• posting on a newspaper's website, and
• messaging through a mobile or web app.

No matter what form of service you use, you must follow exactly the rules of service and any court orders regarding service. If you fail to properly serve your spouse, the court might dismiss your case, leaving you no option but to start the process all over again.