What Can I Do If My Spouse Refuses to Be Served the Divorce Papers?
Divorce is never an easy decision, but it might be the best way to move forward with your life in some situations. Once you’ve decided to get a divorce, the next step is to initiate proceedings and present your spouse with the divorce papers. Unfortunately, said decisions aren’t always mutual. If your spouse does not want the divorce, they might engage in several behaviors to sabotage the process.
One such challenge is when spouses do everything in their power to avoid being served with papers, under the assumption that if they never acknowledge the divorce, it cannot take place. This can be especially difficult when you’re looking for closure. Fortunately for residents of California, there is legal recourse for individuals who find themselves in this situation. To fully understand how this scenario can come to be and what to do if this happens to you, it’s important to be familiar with the process of filing for divorce.
Getting Started With the Process of Divorce
After deciding to get a divorce, it’s generally a good idea to reach out to your attorney so they can assist you with any necessary preparations, such as making copies of important documents, securing online accounts, making a list of all your assets, etc. Once you’ve sufficiently prepared for the divorce, it’s time to formally file. In California, this consists of filing several documents under California family law. But what are these documents, and what is their function?
What Paperwork Is Involved in Filing for Divorce?
When filing for divorce in California, there are three forms involved. These consist of a Summons (FL-110) and Petition (FL-100), as well as a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (FL-105) if you have children as a result of your marriage.
The summons is used as a means to notify your spouse of your intentions to get a divorce. In addition, it includes essential information confirming your spouse’s legal rights.
The petition is the actual request for a divorce to the courts, including your preferences regarding child custody, spousal support, the division of property, and more.
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act
Finally, the declaration serves to verify that the children of the marriage are, in fact, California residents, and as such, under the jurisdiction of California family law judges regarding custody, visitation, and support rulings.
All three documents must be formally served to your spouse to continue the divorce proceedings.
What Are the Requirements to Serve the Divorce Papers?
When you are ready to serve the divorce papers to your spouse, it’s important to comply with California family law for the process to be recognized as valid. For starters, you cannot personally serve the papers to your spouse. Instead, these must be served by a third party who is not involved in the case and is at least 18 years old. The papers can be served in person or by mail. Keep in mind that the court requires evidence that the papers were effectively received. For this to occur, the server must complete a Proof of Service of Summons (FL-115) form. If the papers were served by mail, then a Notice and Acknowledgment of Receipt (FL-117) completed by your spouse is required as well.
Refusing to Receive the Divorce Papers
Depending on the circumstances involved, your spouse may decide to actively go out of their way to avoid formally receiving the divorce papers. If you are sending the forms by mail, this could be as simple as refusing to sign the papers or making up excuses about why this has yet to be done. However, some will go as far as doing everything in their power to avoid being physically served as well, even refusing to answer the door. To make things even harder, if you’ve already separated before the divorce, you might be unaware of their current address and therefore unable to locate them to serve the papers.
What Legal Recourse Is There?
If the situation persists, there are a couple of options available, depending on the issue. If you are aware of your spouse’s present location and are merely having difficulty ensuring the server has access to them, it may be time to try a different server. Alternatively, if you cannot locate them at all, you can attempt to serve them via publication or posting.
Consider Using a Different Server
As indicated earlier, the server can be any uninvolved third party as long as they are over 18. This means that you can work with a friend or family member who may be more likely to gain access to your spouse. However, if you are unable to find anyone capable of taking on this task, there are other options as well. For instance, if you think a more authoritative figure would be successful, you can have your papers served by a county sheriff or marshal. Also, there are professional process servers who serve documents for a living and are well-practiced in the best techniques to do so.
Request Service by Publication or Posting
Going this route requires you to prove that you have exhausted all other avenues to locate your spouse. Working with a family law attorney can ensure that you’ve not only made a thorough effort, but that said effort has been appropriately documented before submitting your request. If approved, you can pursue an alternate method of serving the documents. Service by publication refers to a scenario where you publish the divorce papers in a newspaper in an area where your spouse is most likely to see it. Service by posting refers to a scenario where the papers are posted in a designated area of the courthouse. In either scenario, if sufficient time passes with no response from your spouse, then you are free to continue with the process.
Avoid Potential Setbacks With a California Family Law Attorney
Serving divorce papers can quickly become a complicated step if you’re dealing with a hostile spouse. The increased stress and frustration can make it more likely that you’ll end up missing a deadline or committing an error in your paperwork. Working with a practiced family law attorney ensures that everything you do is in accordance with the relevant legal requirements while advising you of the best way to move forward when faced with an uncooperative spouse. At Bickford, Blado & Botros, our team is ready to handle any challenges that might come your way, including a spouse who doesn’t want to be served. Contact us to schedule your initial consultation today.
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