Service of Process: The Basics
In every case, the very first step of a divorce involves one party making the decision to file. Once the Summons and Petition are ready for pick-up, the filing spouse (the Petitioner) is told that he/she needs to serve the other spouse (the Respondent) so as to effectuate “service of process.” For those not familiar with the term, service of process is the means by which the other party is given notice that the Petitioner has filed for divorce. It is important to note that the Petitioner cannot be the one to actually serve the Respondent.Who can Serve (CCP Section 414.10)
A person who is 18 years old or older and who is not a party to the case may act as the server of process. This can be a friend, a family member, a colleague, a sheriff or a professional process server. The options are virtually limitless so long as the server is not a party to the case and is at least 18 years old.How to Serve (CCP Sections 415.10, 415.20, 415.30)
Generally most people serve via personal service. This involves handing the Respondent the service packet and advising that the Respondent is being served with legal documents. It is important to note that even if the Respondent refuses to take the documents, the server may set them down in front of the Respondent and still deem service complete.
Another method of service is service by Notice and Acknowledgment of Receipt. This requires mailing by first class mail, postage prepaid, all of the required documents with two copies of a Notice and Acknowledgment of Receipt (with a postage pre-paid envelope addressed to the sender). This form allows the Respondent to acknowledge that he/she has been served. Service is deemed effective the date the Notice and Acknowledgment is signed by the Respondent.
Another option for effectuating service is substitute service. This is after the server has tried to personally serve the Respondent but is unable to after numerous failed attempts. When unsuccessful in personally serving the Respondent (or serving by Notice and Acknowledgment), the server can then leave the papers with someone at the Respondent’s home who is at least 18 years old who lives there, or at the Respondent’s place of work with someone who is at least 18 years old and appears to be in charge. The server must explain that he/she is serving legal documents for Respondent. Thereafter, the server must mail a copy of the documents to Respondent at that same address. As with all other means of service, the server must fill out the proof of service. In addition, the server must write up a declaration of due diligence explaining all the attempts at service (time, location, means) prior to effectuating substituted service.Posting and Publication (CCP Sections 415.30 and 415.50)
Unfortunately, sometimes service cannot be effectuated by any of the means addressed above. In those cases, the last resort is requesting permission from the Court to serve by posting or by publication. Service by publication allows the Petitioner to publish the Summons and Petition in a newspaper of general circulation in an area where the Respondent is most likely to see the documents. The documents must be published for 4 consecutive weeks. Once that time has passed, if Respondent has not filed a Response within 31 days, the Petitioner may file for default.
Similarly, service by posting allows the Petitioner to post the Summons and Petition at the courthouse (there is generally a designated spot at each courthouse). As with service by publication, the Summons and Petition must be posted for 4 consecutive weeks. Thereafter, if Respondent has not filed a Response within 31 days the Petitioner may file for default.
For both service by publication and service by posting, a motion must be filed with the Court asking for permission to serve in this manner. In order to obtain such orders, the Petitioner must demonstrate that he/she has done everything possible to try and serve Respondent. If the Court is satisfied, the Order will be granted. In deciding which request to make (permission to post or publish) it is generally a good idea to ask for service by posting if the Petitioner is low on funds. This is because with service by publication the Petitioner is responsible for paying the fees associated with publishing the Summons and Petition.
The rules of Civil Procedure, which govern service of process, are very technical and the Courts take them very seriously. Here at Mello & Pickering, LLP with 40 years of combined experience in family law, we can help navigate you through the divorce process ensuring compliance with all of the relevant rules and regulations.