You may think the answer to the question of how to serve divorce papers is an easy one. You may even ask yourself why an article is necessary for something so simple when every divorce paper should simply be personally served on a spouse. While it is correct that personal service of divorce papers is one option, our divorce lawyers also believe that time should be spent to discuss options especially so the service process does not unnecessarily cause friction or result in a start to a divorce case wrought with anger or hostility.
Let’s look at some options.
How to serve divorce papers? Is personal service the best choice?
Certain circumstances do make personal service of divorce papers through a register process service the best choice.
These circumstances include situations where there’s a reasonable belief that the other spouse will evade service, where immediate service is necessary because immediate orders such as child custody and visitation, child support and spousal support or other protective orders need to be sought, or where there is an urgency because the other spouse may immediately file a divorce action in another jurisdiction, such as another county or state.
If circumstances such as these do not exist, then you and your divorce attorney should discuss whether personal service will upset the other spouse or make him or her feel that you have unfairly started a divorce process without communicating with him or her or without even first attempting to reach some resolution on core family issues.
What are these core issues? They include:
- Whether you and your spouse will continue to live together or one of you will move out during the divorce,
- What may happen with the custody of the children in the family law case and whether the two of you can come to an agreement and,
- What financial arrangements can be made between you and your spouse to ease the burden of a divorce on each of you.
While certain cases are clearly not appropriate for this type of discussion, including cases of serious domestic violence, child abuse (or being falsely accused of child abuse before the divorce starts) or even those that involve serious alcohol or drug abuse, if you and your spouse do not have any of these issues and you expect the divorce to be amicable, personal service of a divorce petition may cause friction that can be avoided through other means.
How to serve divorce papers? “What” you should serve can be as important as the “how”
Service of divorce papers can also take place by mail so long as your spouse signs a document called a notice and acknowledgement of receipt. Once your spouse signs this document and returns it to your divorce lawyer, service has taken place and the clock starts ticking on your spouse’s response.
However, in appropriate family law cases, our family law attorneys believe the initial service should not just be the divorce petition.
Think of the beginning of a family law case as an opportunity for you to resolve as many issues as reasonably possible with your spouse. If you have a simple financial and assets structure, and you don’t expect contentious child custody issues, you and your lawyer can sit down and not only prepare a petition but also your mandatory disclosures that you must make in every California family law case. With this package, you can also serve a settlement offer on the issues that can and should be worked out.
While settlement of financial issues cannot and should not be finalized until each of you has done your mandatory disclosures, you can certainly make an offer on simple or middle class asset cases when there is no reasonable basis for believing that either spouse is hiding assets or income. In addition, you are protected by making such an offer because your offer would be conditioned on the proper and complete exchange of disclosures between the two of you.
Making an early and fair offer on custody may also pay tremendous dividends for you and your family law case. At best, your spouse will accept your offer and the two of you will have avoided divorce court and saved a lot of attorney fees on custody. At worst, your spouse will reject your offer and act unreasonably and therefore give you a way to obtain attorney fees against your spouse for his or her unreasonable conduct and violation of California Family Code 271.
Either way, in appropriate divorce cases, you have absolutely nothing to lose and everything to gain by not just serving your divorce petition but taking the time to complete your disclosures and setting forth a settlement offer.
Service on an out-of-state spouse
California law allows you to serve a spouse who is out-of-state in different ways. Depending on the facts of your case, the one that may make the most amount of sense is personal service. That is other forms of service (for example, certified mail) does not always result in actual notice or proper service and can also be disputed by the spouse should an issue ever arise as to whether or not he or she was properly served.
What is the best choice?
No two cases are exactly identical.
Whether or not you and your spouse are cooperative, issues can or cannot be worked out, there are potential jurisdictional battles between the two of you (whether that is within the state or outside the state) and many other factors weigh into how to serve your divorce papers.
Before you start a divorce case, contact our attorneys for a strategy session. We will discuss the facts of your case and, once we are retained, our lawyers will help you determine the best way to start the family law process.