In any divorce, custody, paternity, or other family law legal action, the case is initiated by the petitioner (person who files first) filing certain paperwork with the court. In order for the case to then proceed, the respondent (opposing party) must be properly served all the appropriate documents.
For a divorce with children, you will need to serve the opposing party the following:
- Preliminary injunction/restraining order for property and children, and
- Order to attend a Focus on Children Class (if it has been issued by the court).
For a divorce without children, you will need to serve the opposing party the following:
- Summons, and
- Preliminary injunction/restraining order for property.
How do I actually serve the other party?
- They can voluntarily accept service. You would provide the respondent with a copy of the petition and summons, along with any other documents issued by the court. The respondent would then need to fill out and notarize an acceptance of service form (see sample form here)
- You can hire the local sheriff's office to serve the other party. Typically, the sheriff will charge around $50.00 for service. Going through the sheriff's office is likely the cheapest professional service option but it may be slower than hiring a private process server.
- Hire a private process server. Private process server fees range from $60-125. If you need to serve someone out of state, the cost can me higher. Many private process servers offer expedited service (same day).
- Have any third party (not you) who is at least 18 years old deliver the necessary documents to the respondent. This could be a friend, family member, or a complete stranger. This person would then need to fill out an “affidavit of service” (See a sample here).
- The documents can be left at the respondent's home with someone who is at least 18 years old who also lives in the home if the respondent is not home at that moment.
Other options for service:
If you cannot locate the respondent, you might be able to serve them “by publication.” This is when you ask the court for permission to post a notice of the summons in a local newspaper. Once the notice runs for 21 days, the respondent will be considered to have been served, and the case can proceed whether the respondent is actually aware of the case or not.
You will be responsible for the cost of running the summons in the newspaper. The cost can range from a reasonably small amount up to several hundred dollars depending on the location of the newspaper.
*Note: If the opposing party is not served properly, the entire case can be thrown out; therefore, this is a vital primary step in the process. If you have questions about these issues, please contact our office for a free consultation.
The materials at this web site have been prepared for informational purposes only and should not be construed as legal advice or legal opinion on any specific facts or circumstances. These materials do not, and are not, intended to constitute legal advice. Readers should not act upon this information without seeking professional counsel. The information provided at this site is subject to change without notice.