service of process
Problem: You cannot locate your spouse, or you don't want to go through all these complicated papers and then have them rejected because service of process or proof of service was done wrong.
Solution: Learn how to serve even a spouse who has disappeared ,and in all cases arrange service of process and proof of service.
Service of Process
Delivering Papers to Your Ex and Doing Proof of Service
What is service of process?
"Process" refers to various papers filed with the court, such as petition, summons, order, judgment, and subpoena. "Service" generally means personal delivery to the other party.
The one adult who cannot serve papers you (CCP sec. 414.10) To avoid confrontations and lies, the law requires that the parties themselves cannot serve legal papers. Whenever pa¬pers must be delivered, someone other than you must do it. Any adult who can fill out the proof of service form can do this-except you. This applies to all service of all papers discussed in this website.
You cannot even do service by mail There are two types of service-personal and by mail. You cannot do personal service (giving the papers directly to the person), and you cannot do service by mail. If a proof of service by mail is needed, you must have someone else sign it. You can have a parent, a friend, or a neighbor do this for you. But you must be careful never to yourself sign a proof of service of any type.
How to serve papers
For most steps in a divorce, service of process occurs when a copy of the papers is personally handed to your spouse. However, for most motions in divorce cases service by mail is permitted. When your opponent has an attorney, you must serve the attorney.
Some papers cannot be served by mail
In California a Summons, a Subpoena, and an OSCS re Contempt must be peraonlly served on the opponent and cannot be served by mail.
Dont try service by FAX
California Rule 2.306 contains detailed rules for serving papers and provides that without a written agreement by both parties, service by FAX cannot be used. The exception appears to be the requirement of CCP section 1005 that responding papers must be delivered to the opponent within one business day, and they can be delivered by FAX.
Spouse cannot refuse to accept papers
If you are having your spouse personally served, instead of by mail, your spouse cannot prevent service by refusing to take the papers in his/her hand. If the spouse refuses to take the papers, the person serving the papers should simply drop the papers at his/her feet and say, "I am serving you with divorce papers." If a court date has been set, such as for an order to show cause re contempt, the process server should also say, "You need to be in court on __________(date) at __________ (time)." The service will be effective even if the process server does not give the date and time, but the complete statement is the best way if a hearing has been set. This is called "drop service" because the server drops the papers at the person's feet. It doesn't matter if the person served does not pick up the papers; service is complete anyway. If the person served does not pick up the papers, the server should just leave the papers there.
Substituted service leaving papers with an adult at spouses home or work
If you are required to do personal service, such as when you are serving the Summons and Petition at the beginning of the divorce, and your spouse evades service of process, it can be accomplished in two ways. First, it can be done by "sub-stituted service." This consists of your server (1) writing a declaration of due diligence, showing many attempts to give the person the papers personally, and setting forth how likely it is that the person is aware of this (see completed form on page 44), and (2) leaving a copy of the papers at the person's residence with an adult member of the household or at the person's work with the adult person apparently in charge, and informing that person that the papers are regarding divorce, and (3) mailing a copy to the person served, that is, to your spouse, at the address where the papers were left. You need to fill out the proof of service in a different way when you use substituted service, and the form on page 45 indicates this.
Service by publication for the spouse who hides from the process server or who disappears
The second way to accomplish personal service of process, as when serving the Summons and Petition, on a spouse who is evading service is "service by publication" or by posting in the courthouse. This is a difficult and time-consuming process. You may want to contact Attorney Yeamans at (408) 867-8137 to obtain her help with these forms and this process. The same process is used when your spouse has disappeared. Because it is a very serious matter to begin a lawsuit against someone whose location you do not know, you must show the court that you have made every reasonable effort to locate your spouse, but you are unable to find the spouse. To obtain service by publication, you prepare a declaration, showing all the attempts to locate your spouse, and the spouse is not locatable. So your first step is to try to locate your ex, keeping a written record of each such attempt and its date. You may find them and be able to serve them personally.
You also obtain the name and phone number of a local newspaper that publishes legal notices, and ask them what is the cost of publication. You then submit your declara¬tion to the court along with an order for publication. Some counties, such as Santa Clara (www.sccsuperiorcourt.org) have local forms for this. Usually it is a Summons and Petition which are served by publication, but, in fact, any court paper such as a Notice of Motion may be served by publication if time permits and the spouse has disappeared. However, if your spouse filed papers in the divorce and then disappeared, you are entitled to serve motions on the address shown in the court papers; if your spouse moves, it is their obligation, not yours, to notify the court of their current address and phone number.
Order is published or posted for four weeks
Once you have obtained an order for publication or posting, you publish (in local newspaper of general circulation) or post (on courthouse bulletin board) your document once a week for four successive weeks, and then file the proof of publication (which the newspaper gives you) with the court along with your proof of service. You have a friend accompany you to the newspaper so your friend can sign the proof of service. Service is complete twenty-eight days after the publication or posting begins; after those twenty-eight days elapse, your spouse has thirty more days to respond to a Petition, and may have other specific time periods to respond to other types of papers. You cannot proceed further until thirty days or other appropriate time period after service of summons is complete. Thus, for example, with a Summons, twenty-eight days are needed for publication, and thirty more days for waiting are needed, and a party could proceed to take a default a total of fifty-eight days from the first publication. Other time periods apply to other types of documents.
Service after final judgment of dissolution
After the divorce is final, any papers must be served on both your ex-spouse and on his/her attorney of record if that attorney has not filed a formal withdrawal from the case, no matter how many years have passed since the divorce. Ser¬vice on your ex-spouse may often be made by mail, but many attorneys and even judges believe such service must be personal, so you may want to arrange personal service just to avoid the hassle. If service is by mail, you use the regular proof of service by mail. If personal service is used, you use that proof of service. You will need to file two proofs of service with the court--one to show service on the attorney and one to show service on your ex-spouse.
Children and service of process
Although under the law an adult child could serve papers, we strongly discourage that. In addition, it is a very bad idea to serve papers when children are present; do that only if there is absolutely no other way to serve the papers.
Who can serve the papers
An adult friend Professional process server Sheriff
You yourself cannot serve the papers, and you cannot sign the proof of service. You or your attorney will supervise the entire process, but you personally will not serve the papers or sign the proof of service. Someone else who is over the age of eighteen must do this for you. The papers can be served by any person who is not a party to the action and who is over the age of eighteen. Children are not technically "parties" in the divorce, but it is almost always best not to involve even an adult child in serving divorce papers. The person must be responsible enough to not only give the papers to your spouse but to carry through and sign the proof of service. If the person delivers the papers but fails to sign the proof of service, you will have to repeat the service. Also, if there is a problem with your proof of service, you could have to redo it, possibly years later, so you need the server to be someone you can contact even years latersomeone stable.
You need to look in the telephone book or on the internet for "Process Serving" in your locality to locate a professional process server. One drawback with a professional process server is that they will charge you for attempted but unsuccessful tries to serve the papers. That is, if they go to your spouse's residence, and they try to serve your spouse, but your spouse is never there, you will get a bill from them for attempted service of process--and you will still have to go ahead and accomplish service by some other means. If you expect your spouse to be difficult to locate, you may want to ask the process server about such fees before you ask them to serve your papers, and you should tell them what are the most likely hours to find your spouse at home or at work as well as giving them information about the vehicle(s) driven by your ex.
In many counties the Sheriff's Department Civil Division will serve the papers for you at a reasonable fee, but they may be very slow in serving the papers. Before you give your papers to the Sheriff to serve, you need to ask them when they will be able to get to your case.
An adult friend
Professional process server