The comprehensive process of submitting divorce papers is commonly known as the service process. The first step entails drafting of viable documents either by you or through the help of an attorney. This is followed by going to a court clerk to file those documents.
The court officer proceeds by signing what is referred to as a summon, which they then hand it over to you. After getting the response from the clerk you can go ahead and deliver them to your former significant other usually within 91 days. Before delivering the papers, it is essential that you go through paperwork again and make sure that the settlement is really what you desire.
You can peruse through the papers with a divorce barrister or alone as long as you understand the legal terms.
What are divorce papers and who can serve them?
Divorce papers comprise of any important and necessary documents that are mandatory in a divorce. apart from you, anyone who is 18 years old and above is eligible to serve the papers. however, such an individual should not have any association in that divorce. Before we look at who serves the divorce papers let’s first take a look at what is contained in those papers.
There are two major types of documents that are served during the process of getting divorced. The first document is known as the Summons and Complaint. The summons contains the details of the divorce including the time you have to file a response to the divorce. The complaint part consists of all the information about the other spouse that you want to be separated from. It also contains the details of the separation terms such as the real estate division settlement, alimony and child custody.
Ex Parte Orders
The other documents filed can include the Ex Parte Orders. These are motions that are filed asking the judge to order something before the beginning of the divorce case. They are usually about all sorts of things. For instance, they can order a spouse or both not to sell the property until the case is heard or order a certain amount of payments specifically for child support.
They are emergency orders and therefore can be the court can issue them without the presence of the other spouse. Other documents may also include Uniform Child Custody Jurisdiction Enforcement Act Affidavit, Friend of the Court Handbook, Motions for Temporary Orders and verified statements.
Uniform Child Custody Jurisdiction Enforcement Act Affidavit
This is a viable document which is submitted in any divorce case that involve minors. This document is meant to prevent parental kidnapping across distinct states. It gives a provision for uniform jurisdiction in interstate child visitation and custody hearings.
The Act has already been passed in more than 25 states and is already legislation in many other States.
Friend of the Court Handbook
If one of the separating individuals in the divorce case is pregnant or the case involves a minor then the handbook can be included among the divorce papers. The handbook provides a summary of all the duties and responsibilities of the Friend of the Court. It also contains some of the ordinary court procedures.
Motions for temporary Orders
These are the same orders that can be contained in Ex Parte Orders, the only difference is that temporary orders cannot be granted without a hearing. Either party can file for a motion of temporary order. They usually contain all the relevant information such as the place, time and specific date where the case or motion will be heard.
Case Inventory Addendum
This document will be served together with other divorce papers if there are any pending or unresolved family court cases. The cases take into consideration the presence of your spouse, children and yourself in order to be served with the addendum.
there is also one more document that is normally served, the Verified Statement. This document is usually served when one of the spouse is seeking alimony.
Who can serve divorce papers?
Divorce documents can be served by any person who is not a concerned party in your case and is 18 years and above as mentioned earlier. Many people resort to asking a relative or a friend to serve their papers. You can also choose to pay for a professional server or pay your local sheriff or police department to deliver the paperwork on your behalf. Whoever you choose to deliver the papers must:
- Personally deliver or mail copies of the necessary court papers to the respective partner.
- Fill and sign the Proof of Service on the back page of one copy of the Summon papers.
- File the Proof of Service or return it back to you so you can personally file it.
It is important that you deliver the Summons to your spouse within 91 days following the filing for divorce or the case can collapse on grounds of technicality. If you have to mail the papers you should follow the following guidelines to prevent your case from being dismissed;
- Have a friend or relative go the post office and pay for the documents to be mailed to your spouse.
- Use a certified or registered mail that restricts service provision to your significant other.
- After the papers have been delivered, you will receive a return receipt in the main in the form of a green card.
- Confirm that your spouse has signed the green card.
- The person who sent the mail should then fill and sign the Proof of Service form that is on the back page of one of the Summon documents.
- Attach the signed green card or the return receipt with the Proof of service form.
The cost of serving divorce papers
Serving divorce papers is usually not that expensive. The associated costs depend on factors such as turnaround-time (TAT), the number of attempts to be made as well as the urgency involved. For instance, the same day or rush servers are usually paid higher amounts than routine servers.
The cost of a routine server which is to be completed within a week of receiving the documents typically ranges from $20 to $100. However, the national average figures are a bit low and vary between $45 to $75.
In some states, you can demonstrate that you are in need of financial help and get a waiver on the court’s filling for a fee. Some papers are also free and can be obtained online. If you need to file for the divorce urgently and have no cash, you can visit the Circuit Clerk of your county of residence and get more help.
Serving divorce papers to evading spouse
Serving divorce documents to a spouse who cannot be located can be a challenging task. However, there are some provisions in the law that can help you serve your partner with divorce papers.
When you can’t locate your spouse can request for permission from the court to post a notice of the divorce in the courthouse or alternatively to publish the divorce notice in the local newspapers. The latter is known as the motion to serve by posting or publication.
The important thing is to first try to locate your spouse by all means. The judge or magistrate will grant this motion if he or she decides that you have made enough efforts to locate your evading spouse.
While filing for a motion to serve by publication, you will be required to disclose all the things you did and the responses you got while locating your spouse. This essentially means that you might be required to provide a comprehensive list of the places you visited and what you found or didn’t find.
Under such motion, you will have up to 60 days to serve your partner with the documents from the day you filed for divorce. If at all you are unable to file for Motion to serve by publication within the 60 days, you can request for an extension during the case proceedings.
If you fail to do this, then your case can be dismissed and you will either have to abandon the case and initiate a new one or file for a Motion to vacate the dismissal.
Response to a divorce petition
The whole process of initiating a divorce through the court of law is known as filing for a divorce petition. When your spouse receives the divorce documents, he or she is said to have obtained the divorce petition paper.
There is a number of ways in which your spouse can respond or react after being served with all the divorce documents. The best thing that your spouse is expected to do after receiving the papers is to file an answer within 20 days after being served (varies from one State to another).
He or she is expected to give an answer to all the allegations made in the divorce petition. In the response, your partner is expected to inform the court as to whether they deny or admit the statements contained in the divorce petition.
If the other party agrees to file for a response, it means that both parties agree to have a divorce and the proceedings can be heard or settled out of court. Agreeing for an out of court settlement is a good thing as it reduces the expenses and the time involved.
If your spouse decides not to answer the petition for dissolution, it can be very costly to them but a good thing for you. At this stage the court will hold them in contempt and may impose a fine or sentence to serve according to the law of the state you are in.
On the other hand, you can finalize the case and ask the court whatever you want and the court may grant it to you considering that your spouse doesn’t care.
Factors to consider before serving divorce papers
Among the things you should consider the most include: child custody, property settlement, child support and spousal support. We are going to look at each of these separately. We will also look at the cost associated with serving the divorce papers as well as the whole service process. Before serving the documents, you should confirm that the following items are in your favor or best interest.
The law stipulates that children under the age of 18 are minors and therefore both parents must decide on their custody. There are four main types of custody that the court can grant. There is the sole physical custody in which the minor is under the supervision of one parent.
The second type of custody is the sole legal custody where one parent will make all the decisions concerning the welfare of the minor. The other type of custody is the joint physical custody in which all the parents will have physical contact with the minor at separate times.
Going through a divorce can be a painful and stressing at the same time. Property settlement makes it even harder. The first important thing the court is going to consider while splitting property is whether the property is communal or non-communal.
Communal property refers to all the income that was earned during the marriage period. On the other hand, non-community property refers to all the assets and income earned by the individual spouse while alone.
If you are going through a divorce and there are minors involved is mandatory to include the child support clause. The support is compulsory whether the parent is unemployed or is nowhere to be found.
Different states have different laws that dictate the guidelines for payments. The settlement amount is pegged at certain levels depending on the amount of time spent with the minor and the level of income of the concerned parent.
The pegged amount can include or exclude the following expenses: child care, health care, and insurance, travel and visitation costs and special education and related expenses.
Spousal support/ Alimony
The other important item to consider before serving the divorce papers is spousal support. This kind of financial support is sometimes referred to as alimony. Alimony is either based on the sole decision of the court or the agreement between the partners. The purpose of it all is to ensure the sustainable income of the spouse who is not employed.
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