As I’ve talked about in prior posts, there are several legal documents which are necessary to get the divorce process started.
On the most basic level, the legal documents that need to be served in most states are a “Summons” and a “Petition for Dissolution of Marriage.” The law varies from state-to-state and you should talk with a divorce attorney in your area for further information about how the law changes in your state.
Ok, we know that to get the divorce process started, you or your lawyer will need to draft documents called a “Summons” and a “Petition for Dissolution of Marriage.” Then what?
In the legal system, notice and service of all legal paperwork on the other side (be it a husband, wife, boyfriend, girlfriend, or other party). As I’ve discussed, the legal system in the United States is based on a system of fairness and equal-opportunity to have your voice heard. There are no sneak attacks. The courts are there for the people. Lawyers and judges are officers of the legal system who are supposed to carry out the will of the law. I know that not every lawyer and judge always acts that way, but most do.
So, we know that each party gets chance to be heard. Parties can either represent themselves (which the courts call “pro se”) or they can be represented by lawyers. I recommend the lawyer route, but, then again, I’m a little biased.
Whether “pro se” or “by counsel” the person who is filing for divorce must “serve” the Summons and Petition for Dissolution on the other side. The serving party is typically referred to as the “Petitioner” and the receiving party will typically be referred to as the “Respondent.” Why? Because the courts like things nice and tidy. The courts are not interested in using personal names. Can you imagine how hard it would be for the judge to remember the name of every husband and wife that came before the court for a divorce? It would get messy in a hurry.
So, we have the Petitioner and the Respondent. The Petitioner must serve the Summons and Petition on the Respondent. The manner of service is very important. The law in each state varies on this issue. In some states, the court will serve the Summons and Petition. In other states, it is the responsibility of the Petitioner to serve the Summons and Petition.
How do you “serve” a Summons and Petition for Dissolution of Marriage?
There are three typical manners of service of process:
- Personal Service
- Service by mail
- Service by publication.
The first option, personal service, is the most common and most prevelant. Why? Because personal service means that the Summons and Petition are actually physically given to the Respondent. What better way is there to make sure somebody gets legal documents?
The second option, service by mail, is used, but is often not as effective. As we all know, the mail system is not fool-proof. It’s easy for things to get lost or misplaced. It is also hard for Dakota County divorce lawyers to prove that somebody actually got something when they say they didn’t. Certified mailing helps, but not every state allows it.
The final option, service by publication, is typically available, but as an option of last resort. Again, I don’t practice law in every state and I don’t pretend to know the law in every state, but it is typical of a state law to state that if for some reason personal service cannot be made, then service by publication may be acceptable. Service by publication is just as it sounds: notice of the divorce proceeding are published in a qualified, local newspaper. To be honest, I’ve never served somebody by publication in a divorce proceeding. I’ve done it in an Adoption, Probate, and other matters, but never in a divorce.
Those are the options for service of process in most states. Once the Summons and Petition for Dissolution are served properly, the divorce proceeding is commenced. After that, the fun can begin: negotiating or litigating a divorce settlement or decree.
