Serving and Answering a Divorce Petition
When a divorce begins, one spouse starts the process by filing legal paperwork with the court. This person is usually called the petitioner (or the filing spouse). The other spouse, who receives these documents, is usually called the respondent.
The official delivery of these divorce papers to the respondent is a formal process called "service." Whether you are the one serving the papers or the one receiving them, understanding the strict legal rules is crucial for protecting your rights and ensuring a fair outcome. This guide explains what you need to know.
Serving the Divorce Petition
Serving the divorce petition is the formal way you notify your spouse that you have filed for divorce. To be legally valid, service must follow specific state and local rules.
- Who Can Serve: In most states, the law does not allow you to serve the papers yourself. The server must be a third party who is over 18 and not involved in your case. This can be a professional process server, a sheriff's deputy, or sometimes even a friend or family member who meets the criteria.
- Methods of Service: The most common and legally preferred method is personal service, in which the server physically hands the documents to your spouse. If that isn't possible, a court may permit other methods, including:
- Substituted Service: Leaving the documents with a competent adult at the respondent's home or workplace, and then mailing a copy.
- Service by Mail: Sending the documents using a method that requires a signature, like certified mail with a return receipt. Your spouse must sign an acknowledgment form for this to be valid.
- Service by Publication: If your spouse cannot be located, a court may grant permission to publish a notice of the divorce in a newspaper. This is a last resort.
- Proof of Service: This is a critical step. After serving the papers, the server must fill out and file a "Proof of Service" form with the court. This legal document is a sworn statement that your spouse was properly notified. Without it, your case cannot move forward.
- Time Limits: States have deadlines for how quickly you must serve the papers after filing them with the court. If you miss this deadline, your case could be dismissed.
Common Problems When Serving Papers
Your spouse may try to avoid being served. This can cause delays and increase costs. However, a professional process server has experience dealing with this. If all attempts fail, you may have to ask the court for permission to use another method of service.
If you don't follow the legal rules exactly, the service can be challenged by your spouse and declared invalid. This can result in your case being dismissed, forcing you to start over.
Answering the Divorce Petition
If you are served with a divorce petition, you have a limited time to file a formal response with the court. Taking this step is essential to ensure your interests are represented.
- Deadline to Respond: States have strict deadlines for filing your response, typically ranging from 20 to 30 days from the date you were served.
- The "Response" or "Answer": This is your formal reply to the statements and requests made in the divorce petition. You can agree or disagree, or state that you don't have enough information to respond to a point.
- Counterclaims: The response is also your opportunity to tell the court what you want in the divorce. This is sometimes called a "counterclaim." This can include your own requests regarding property division, child custody and visitation, child support, and spousal support (alimony), which may be different from what your spouse requested.
- Filing and Serving: Just like the petition, your response must be filed with the court, and a copy must be formally delivered (served) to your spouse or their attorney.
Consequences of Not Answering the Petition
Failing to file a response within the legal deadline can have severe and often permanent consequences. Your spouse may eventually ask the court for a default judgment. This means the court can proceed with the divorce without your input. The judge can grant your spouse everything they asked in their petition regarding property, support, and custody. While it is sometimes possible to reverse a default judgment, it is a difficult, expensive, and uncertain process.
Practical Next Steps
While this guide covers the general legal process, remember that divorce laws are specific to your state and even your local county. Always check with your local court clerk's office or their website for the specific forms, filing fees, and procedural rules you must follow.