At first blush, serving divorce papers seems like a simple matter; however, more than one divorce client has asked me what “service” actually entails and how it may be accomplished. This post provides an outline of the process.
“Service” or “service of process” is a legal term describing the act of giving the other party notice of a legal action. Different kinds of legal proceedings require different methods of service. For example, in some cases, service may be accomplished by mailing the other party a copy of the court documents you have filed. In other cases, the court documents must be personally served on the other party.
If you are filing for divorce or legal separation, and you are not filing jointly with your spouse, the summons and petition need to be personally served on your spouse.
NOTE: If you are simultaneously filing a motion for a temporary order along with the other documents, it is most efficient to have the notice of motion and the motion itself served on your spouse along with the summons and petition.
Personal Service of Divorce Papers
It is important to understand the legal requirements of personal service because, if your spouse is not properly served, your petition for divorce or legal separation may be dismissed. Personal service of the summons and petition must be accomplished within 90 days of the date on which you filed for divorce or legal separation.
The following provides a list of the most common methods of personal service:
- Admission of Service. You may give your spouse a copy of the summons and petition and ask that he or she voluntarily accept service. If your spouse accepts service, he or she must sign and date an Admission of Service form, which you must file with the court.
- Service by Sheriff’s Department. If you suspect your spouse will not agree to voluntarily accept service, you can ask the Sheriff’s Department for assistance. You will need to contact the Sheriff’s Department of the county in which your spouse resides, and they will likely ask you for two copies of the summons and petition and a description of your spouse and his or her whereabouts. There is usually a fee for this service. Once the Sheriff’s Department completes service on your spouse, they will prepare a Proof of Service document which must be filed with the court.
- Service by Private Process Server. In some cases, you may choose to hire a private process server to serve the summons and petition on your spouse. While private process servers are typically more expensive than the Sherriff’s Department, they allow you to have greater control over the time, location, and manner of service. Private process servers are particularly useful when attempting to serve a spouse who is difficult to locate or likely to try to evade service. Again, once service is complete, the Proof of Service must be filed with the court.
- Service by Friend or Family Member. You may also ask a friend or family member to serve a copy of the summons and petition on your spouse. This individual must be at least 18 years old, a Wisconsin resident, and not a party to action. After the friend or family member successfully gives a copy of the summons and petition to your spouse, he or she must complete an Affidavit of Service form and sign it before a notary public. You must file the signed and notarized Affidavit of Service with the court.
Again, regardless of the manner by which your spouse is personally served, be sure to file proof of service – or admission or service or affidavit of service – with the court within 90 days of the date on which you filed for divorce.
Service of Divorce Papers by Publication
In rare cases, a spouse may be unable to personally serve their spouse with divorce papers because they are unable to determine the spouse’s whereabouts. If you cannot locate your spouse, despite diligent efforts, you may be able to proceed with your divorce by publishing the summons in a local newspaper. To permit service by publication, the court will need you to demonstrate that you have exhausted every reasonable method of locating your spouse. This may include contacting the respondent’s relatives or friends for a current address and evidence of failed attempts at personal service.
If you are contemplating a divorce or legal separation from your spouse, and you have questions regarding service or any other aspect of the process, consider contacting one of our family attorneys in Madison or Milwaukee to schedule a consultation.