Service of a Divorce or Custody Lawsuit

Legal Topics

When you file papers with the court, all parties involved in the case are entitled to receive a copy. You, not the court, are responsible for getting the copies to them. This is called service of process. Different situations require different types of service.

Serving a Summons and a Complaint upon your spouse or ex-spouse.

When you start a divorce or custody case, the first court paper you file will usually be a complaint. When you file your complaint, you will get a court form called a summons.

You must serve a copy of the summons and complaint on the other party in the case. You must serve the summons and complaint in one of these ways:

  1. Personal Service: Ask an adult who is not involved in the case to hand the summons and complaint personally to the other party. You cannot do this yourself. You can ask a friend, a relative, or a professional process server to serve the papers. The other party may be personally served anywhere that you can find that person: for example, at home, at work, on the street
  2. Substitute Service at Home: Ask an adult who is not involved in the case to hand the summons and complaint personally to another adult who actually lives in the same home as the other party. You cannot do this yourself. You can ask a friend, a relative, or a professional process server to serve the papers.
  3. Certified Mail, Return Receipt Requested: Mail the summons and complaint by certified mail, return receipt requested, to the other party. You can do this yourself at the post office. The post office will mail the return receipt (sometimes called the “green card”) back to you after the letter is delivered. The best place to mail in this way is to the other party’s home address. The other party, or an adult who actually lives in the same home, must sign the green card.

How much time do I have to serve a Summons and Complaint?

You have 60 days. If you need more time, you can ask the court to give you a second summons which gives you another 60 days. You must ask for the second summons before the first summons expires. If you need more time after that, you must file a request with the judge. 

How do I prove that I have served the Summons and Complaint?

After the other party has been served, you must file an Affidavit of Service at the Family Court Central Intake Center. This is a sworn statement about when and how the other party was served. The court will not move forward with your case unless you file this affidavit.

There are different requirements for the affidavit, depending on how you served the papers.

  1. Personal Service: The adult who served the papers must complete the affidavit.
  2. Substitute Service at Home: The adult who served the papers must complete the affidavit.
  3. Certified Mail, Return Receipt Requested: You must complete the affidavit and attach the signed green card.

If you do not serve the Summons and Complaint and file the Affidavit of Service within the required time period, your case may be dismissed and you will have to start all over again.

What if I cannot find the other party to serve the Summons and Complaint?

You can file a Motion to Serve by Publication or Posting. You must first make efforts to find the other party. Include a statement of all those efforts in your motion. The judge will let you know his or her decision about your motion at a court hearing or by mail. If the judge decides you have not made sufficient efforts, you can continue to make efforts and then file another motion if you still cannot find the missing party. 

  • Service by Publication: Publication means putting a notice in the newspaper. If the judge grants your motion, you must go to the Family Court Central Intake Center to make arrangements for publication of the notice. The notice must be published in two newspapers once a week for three weeks.
  • Service by Posting: Posting means putting a notice up in the courthouse. If you cannot afford to publish a notice, you can ask that the notice be posted instead of published. If you have already been granted a fee waiver, you should mention that in your motion. Otherwise you will have to provide information about your financial situation in your motion and the judge will decide whether to allow notice to be posted instead of published. If the motion to post is granted, the court clerk’s office will take care of posting the notice for the required 21 days.

How do I prove service by publication or posting?

  1. Service by Publication: The newspapers will send proof of publication to the court.
  2. Service by Posting: The court clerk’s office will take care of everything, and you do not need to file an affidavit.

Serving Court Papers Filed after the Initial Complaint

In general, copies of any other papers you file in a case, such as answers or motions, must be served on the other party. These papers can usually be served by regular, first-class mail. If the other party has a lawyer, mail the papers to the lawyer. If the other party does not have a lawyer, mail the papers directly to the other party. You can also hand-deliver the paper to the attorney or the other party.

How do I show the court that I served other court papers, filed after the initial Complaint?

When you file court papers other than the initial Complaint, you must also file a certificate of service that states who you served, how (by mail or by hand-delivery), at what address, and on what date.

Serving Court Papers Filed after a Final Order has been Entered

Generally, if you file a motion or other pleading more than 60 days after a final order or judgment in your case, the papers must be served the same way you would serve a summons and complaint.

For More Information

For more information, please don’t hesitate to call me at 240-617-0404.