The moment a person decides to go through with a divorce can be a moment marked with overwhelming doubt. There is usually a dizzying array of things to consider: Hiring a lawyer, visits to the courthouse, filing motions, questions about child custody and community property — all of these things bombard a person’s mind. But sometimes it’s easy to forget that a 1000-mile journey begins with a single step. When one party files for divorce, they are required to serve the other party with papers notifying them of that fact.
Many would be surprised to hear that even the process of serving your spouse with divorce papers requires some thought and planning.
Those visiting this page might wonder why such a seemingly easy task would even need its own article. The answer is that there are a number of different options available to a person who has decided to file for divorce. The way in which service is done can potentially have an effect on rancor that develops during divorce proceedings.
Because of this, and because of so many other things that need to be considered when filing for divorce, it is highly recommended you hire a good family law attorney to help you navigate the process. Remember that this page is intended to be informational only. It is not legal advice. If after reading this page, you still have questions about your own family legal issue, contact our office to see how we can help.
What Are the Options For Serving Divorce Papers What is the Best Choice?
In certain cases, it might be perfectly acceptable to serve your spouse through a third party, who will personally serve the divorce claim to your spouse. This could be a very informal way of handling the issue and could be done by any number of people so long as they are not associated with the case.
However, if the relationship with your spouse has certain issues, and the divorce is likely to be contentious, it might be recommended that you enlist the help of a professional to serve your claim. This could include a licensed process server, or a deputy sheriff.
Professional service might be recommended under the following circumstances:
- Cases in which immediate orders of child custody are issued
- Cases in which spousal support is ordered
- Your spouse is abusive
- Your spouse is addicted to drugs or alcohol
- Cases in which you believe your spouse will evade service
If these things aren’t pressing issues in your family situation, it might be recommended that you discuss a softer approach with your attorney. Divorces can be emotional, even when the couple continues to maintain a decent rapport.
If possible, it might be a good move to serve papers in a way that won’t lead the other person to feel attacked or that they are being divorced unfairly. While there are no guarantees as to how a person will respond when being divorced, finding an easier softer way to begin the process might result in a less contentious divorce proceeding, potentially resulting in lower costs for both parties.
This could be done through the more gentle method of certified U.S. mail. With this method, the clerk of the court is paid a fee. The clerk then in turn mails the divorce papers to the other spouse’s address using the certified method. Your spouse will have to sign a notice and acknowledgement of receipt and return it to your lawyer.
Whatever your specific situation, it’s highly recommended you discuss your options with a family attorney.
Some More Specifics
If you have a relatively simple marriage situation (i.e. no children, a simple list of community possessions, low debt load, etc.) it might be a good idea to sit down with your lawyer before serving your spouse and discuss the possibility of preparing the divorce petition as well as the disclosures that must be made under California law.
These disclosures are covered by Family Code §2104, which states:
“Each party shall serve on the other party a preliminary declaration of disclosure, executed under penalty of perjury on a form prescribed by the Judicial Council.”
These disclosures include the identity of all assets the declarant has or may have an interest in, as well as all liabilities he or she may be liable for. If you and your lawyer decide to notify your spouse of your intention to divorce via this method, you might also consider making a settlement offer on issues such as debt.
What if Your Spouse is Out-of State?
The answer to this question depends on whether or not you are able to maintain decent communication with your spouse. Under California law there are a number of different ways you can serve an out-of-state spouse, including certified mail.
However, if your spouse is attempting to evade service is or bitter over circumstances of the relationship, this might not be recommended. A person in this state of mind might dispute ever receiving the mailing. In such cases it might be better to do personal service.
Consulting with a Lawyer
It’s important to remember that no two divorces are the same. If you really want to know how to serve divorce papers in Orange County, then you should contact a lawyer. What might be recommended for a couple with few assets, no children, and a stable rapport, is not going to work for a couple with multiple properties, children and a host of resentments.
How you serve your spouse when announcing your intention to divorce could end up affecting the duration and financial cost of the case. This is why it’s always recommended that you sit down with a qualified attorney and explore your options.
When looking for an attorney to represent you, keep in mind that his or her ability to communicate effectively is a major asset—it’s a skill that some attorneys are notoriously lacking. A good attorney will not only be able to represent your interests well in a courtroom setting, but should also be able to examine your case, and quickly suggest to you the best course of action.