There are so many difficult aspects of a divorce. One of the toughest is serving your spouse divorce papers. Is there ever a right time, place or the right circumstances?…..
There are so many difficult aspects of a divorce. One of the toughest is serving your spouse divorce papers. Is there ever a right time, place or the right circumstances? The following is a guest post that addresses 5 ways to serve someone in a divorce.
How to Serve Someone In a Divorce, Plus Five Creative Ways to Do it
by Darryl Blank
Going through a divorce proceeding is usually a complicated process and involves a lot of time, money, energy, and not to mention emotional strain. And this is the case even with the aid of a reputable divorce attorney. One particular element of the whole divorce process that most people don’t really think of too much or consider until it’s upon them is the actual serving of the divorce papers to the defense.
Now with mutual parties, this might be fairly simple and straightforward process. However there are cases where the defendant doesn’t want to actually go through with a divorce, hoping to stall or possibly full of anticipation that things will “all work out”, they might go to great lengths to avoid accepting the divorce papers. The court system needs verification that the defending party is aware of the charges in order to begin the process.
Before we dive into methods on how exactly how to go about serving the papers to the defendant, it’s important to understand some key point about the divorce serving process.
What Paperwork is Needed?
The paperwork that the defendant needs to be given in the state of California, as explained by Legalzoom, is a collection of the following items:
- Petition (form FL-100)
- Summons (form FL-110)
- A blank Response (form FL-120)
- Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (form FL-105) (If involving children under 18 years of age)
- Copy of any Child Custody and Visitation Application Attachment (form FL-311) filed with the court
What are my Options for Serving?
So the next question would be, who would actually do the serving of the paperwork? If you are filing for divorce in California, one important thing to understand is that no one on the prosecution side, or anyone that is a party to the case is legally allowed to serve the papers themselves to the defendant in California. So your options for this process could be any of the following:
- Sherriff or Constable. For this, you need to make sure that you use a Sherriff or constable from the particular jurisdiction that the defendant resides. And they usually require a fee for this service. The cost for this service varies from $20 up to $100, depending on the Sheriffs department.
- Private Process Server. These are private parties who make a living out of serving papers to defendants. As with the Sherriff, the price depends on the particular process server. According to Serve-now.com, the average rate is from $45 to $75 for the service.
- Friend or Relative. This is probably the cheapest way to go, but it does put your friend or relative in a potentially hostile position. Just keep in mind that the person that you nominate to do the serving needs to meet some specific criteria. They need to:
- Be 18 years old or older
- Not a party to the case
- Serve the paperwork on the other side in the time required
- Fill out a proof of service form that tells the court whom they served, when, where, and how.
- Return the proof of service to you so you can file it with the court.
What do I need to tell the Defendant?
In order to successfully serve the defendant in the state of California, you need to successfully inform the defendant of the following concepts:
- That there is a case
- What the case is about
- What the defense must do
- If there is a court hearing and
- When and where to come to court
However you go about the service process, you will need to obtain Proof of Service for the courts in order to have jurisdiction. This involves getting a proof of service signature from either the sheriff or private server on your behalf, or getting an acceptance signature from the defending party themselves.
What are the Available Legal Methods to Serve Divorce Papers?
The California courts allow the serving of papers for a divorce in the any of the following methods (Note that some of those methods require approval from the court to execute):
- Personal Service. The delivery of documentation in person. This could be at the party’s home, work, or even in public.
- Service by Mail. Sending required documentation through the mail, such as Certified Mail or FedEx. And just like with personal delivery, the person mailing the papers cannot be a party in the case.
- Substituted Service. Usually permitted if personal service and mail methods were unsuccessful. If going this route, you need to submit the following:
- Submit a “Declaration of Due Diligence”
- Fill out a Proof of Service, explaining the multiple methods of who, where, when, and how you served the papers.
- Service by Notice and Acknowledgement of Receipt. This method is not typically used for divorce cases. This is a method in which you post the legal paperwork in a noticeable spot where you are confident the defendant will find them. This could be their front door or automobile. You need to get court approval for this method, and is usually granted after other attempts have been unsuccessful.
- Service by Publication. You need court approval for this method. This involves using publications like local newspapers to inform the defense.
- Service by Posting. Another form of service that needs court approval. This is posting a notice of the court summons in a public location, like a town hall or grocery store, where the defendant is likely to pass by.
Five Out-of-the-Box Ways to Serve Someone Divorce Papers
If you find yourself dealing with a partner that is making the service of the divorce paperwork difficult, you might want to consider getting a little creative in order to catch them off-guard. Below are five great ideas for serving your divorce papers to the defensive party.
Idea #1: Hire a Sherriff to Show up at their Workplace
Utilizing the element of surprise, as well as choosing a public setting like the defendants workplace, is a great way to catch the person off-guard. Plus, adding in the law enforcement official adds an extra level of embarrassment for the individual. This method will possibly help avoid any major incidents, and hopefully the defendant will accept the service without might of a fight. As mentioned above, you need to make sure the Sherriff has jurisdiction where the defendant works, and there might be also fee.
Idea #2: Have a friend pretend to be a Flower Delivery Person or Prize Presenter
Everyone loves to receive presents, and this might be a good way to get the defendant to drop his or her guard. You could include the service papers in a gift box. If their birthday is coming up soon, or even Valentine’s Day, you could use that as an extra element of surprise. Just make sure that you use a person that the defendant doesn’t recognize at all. And it is important for the defendant to confirm their identity to person in disguise.
Idea #3: Stage a Car Accident Scenario
If there’s a case of someone coming to the door at the defendant’s residence claiming that the person doesn’t live there, you might want to feign an emergency in order to get them to reveal themselves. If you have someone go to the door claiming that they just backed into the person’s vehicle, it might cause the defendants to reveal themselves. Again, this will have to be someone that the defendant has never seen before.
Idea #4: Post a Divorce Notice in a Local Newspaper
If you are finding that other serve attempts have failed, the court might let you utilize a “Service By Publication” method. I you know that the defendant routinely reads a particular local newspaper or local website, you might want to consider purchasing an ad spot in that paper, or post on the site. This way, the chances that the defendant will see it is very likely, plus you can use the ad or notification as the proof of notification for the courts.
Idea #5: Duct Tape the service papers to the person’s car windshield.
If you place the service papers in a location that the defendant has no choice but to acknowledge, then that might be the best way to go. One great idea is to duct tape the service papers to the middle of the defendants car windshield. They would be forced to remove it before driving the car, and this would force some interaction with the papers. Just make sure that the papers are concealed in something water-proof, just in case there is rain or any other elements that day.
Even though the divorce paperwork service process is only the beginning of the divorce proceedings, it is a very important step that needs to be accomplished before anything else can happen. There are several methods that the courts allow to be used in order to do it. And even if the defendant in the divorce case isn’t being cooperative, there are some proven creative methods to complete the task. And even if you are unsuccessful, you can show your attempts to the court and you can keep the ball rolling, and finally move on with your life.
This article has been provided in collaboration with the Orange County Divorce Attorneys at Wilkinson & Finkbeiner, LLP. They offer unmatched dedication and service for divorce and family law matters, including child custody and child support, alimony and more. Serving all of Irvine and Orange County.