I find there’s often a lot of confusion about what it means to serve someone and at what point you have someone served in a divorce case. There’s so much confusion, and it’s really almost nearly universal, that I feel like service of process is something worthy of the devotion of an entire article.
What does it mean to serve someone?
When someone is served, a process server (a private person from a company hired to serve process, who must be over 18 years of age and not a party to the case at hand) or a sheriff’s deputy physically hands or affixes to the front door of a person’s home paperwork related to a legal action that has been filed with a court.
Notice that I say legal action that has been filed with a court. That means that physical paperwork has been filed with the court, and you are being provided with notice of a pending suit. It is already in the courts, and you are being served because you are legally entitled to notice that such a proceeding is pending.
What do I have to do when I get served?
You need to read the paperwork. All lawsuits are a little bit different, and the requirements associated with each can be different. It may be that you are being served with notice of a court date. It may be that you have to respond to the allegations in the filed paperwork within a certain number of days. You need to read and be aware of the requirements imposed on you here, because the court is inflexible. If you don’t answer or show up for court on that date and you’ve been served, you’re in default, and the judge can issue findings against you, even in your absence.
You can’t be the ostrich that buries your head in the sand here. You have to read and respond. Not sure what’s happening? It might be a good time to talk one on one to an attorney, so you can at least figure out what’s going on and what’s going to be required of you. It’s not a good idea to ignore it.
Was I served if I got something in the mail?
No. If you were mailed something, it was not served. Service is only effective if it was handed to you (personally served), or affixed to your front door.
Oftentimes, when documents are mailed, they haven’t been filed with the court – at least, not if it’s the first filing you’re receiving. Once you’ve been served, further notice of your suit may be mailed to you (it isn’t served each time something is filed; that would be ridiculously expensive), but the initial notification will be formally served on you.
If it’s just a separation agreement, your husband (or his attorney, if he’s represented by counsel) will just mail a copy of the proposed agreement to you. Nothing has been filed with the court in this case; it’s just a request to negotiate and resolve the case on an uncontested basis (meaning without court involvement). You don’t have to respond if nothing is pending with the court. You can completely ignore it.
The risk, though? Well, if you don’t respond for long enough, your husband will have no choice but to file a divorce with the court, have you served, and then you have to respond within the prescribed time period. Though you can take your time reviewing the document and retaining the services of an attorney to represent you, if you like, it’s generally better to respond and at least participate in the negotiation process.
When do I serve my husband?
You don’t serve your husband with divorce papers (or custody papers, if it’s a custody case you’re pursuing) until you file for divorce.
When you file for divorce depends on the type of case, and the grounds for divorce that you are alleging.
In Virginia, as in pretty much everywhere else that I know of, you have to have grounds to get divorced. You have to have grounds to file for divorce. So, in Virginia, you can choose from either fault based, or no fault based, grounds.
Fault Based Grounds
In Virginia, the fault based grounds you may use are adultery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction. I’m not going to go into a whole lot of detail about what each of these mean; generally speaking, I think they’re pretty self explanatory. You don’t have to prove your grounds at the time you file, but you do have to have a reasonable belief that these things occurred. You allege them when you file; you’ll prove them at your final divorce trial, if your case goes that far.
Because your grounds exist at the time of filing (you can’t file for divorce because you assume at some point in the next year your husband will sleep with someone else, right?), you can file immediately. With the exception of adultery (which qualifies you for an “immediate” – note the use of air quotes – divorce), you still have to be separated for a year before your divorce can be finalized. So, you may file before you’ve made any progress on negotiating your divorce, and, in fact, may not be successful in negotiating your divorce before your case goes to trial. If your case goes to trial, which it may after your one year period of separation has elapsed (because you must be separated that length of time to get divorced), then the judge will decide how everything will be divided.
No Fault Grounds
In a no fault divorce, on the other hand, your grounds are that you’ve lived separate and apart without cohabitation for a period of one year (or six months if you meet two criteria: (1) you don’t have minor children, and (2) you have a signed separation agreement), so you can’t even file for divorce until that one year period has elapsed.
Cut to the chase: You can file right away in a fault based divorce, but you can’t file until you’ve been separated a year (or 6 months, if you meet the criteria) in a no fault divorce. So, your husband won’t get served until after you’ve filed.
Can I serve him with my separation agreement?
I mean, you could, I guess, but I don’t know why you would. You could just mail, email, or hand it to him, and that would be just as effective. If you like, you can even send it via certified mail. I don’t know why you’d send it with a process server, since there’s a fee associated with service, and there’s no response requirement. What would it accomplish?
Sometimes, when I’ve filed for divorce anyway but have also prepared a separation agreement, I’ll have a party served with all of it – the documents filed with the court, the separation agreement, you know, the whole shebang. But that’s not all the time, and I throw the separation agreement in in an attempt to say, “We’re filing because we’re taking this seriously, but we’re still willing to negotiate.”
So, anyway, that’s basically how service works. For whatever reason, there are a lot of misconceptions about it. I almost always get asked whether we’re going to serve the other party with the separation agreement, and the answer is almost always no (again, unless, like I mentioned, we filed for divorce and are serving the agreement along with the paperwork – but, even then, that’s not always the case, nor is it necessary, strictly speaking).
You’re right to be asking questions. After all, it’s not every day that you file for divorce, draft a separation agreement, or consider serving your husband with legal documents related to a suit you’ve filed against him. It’s complicated, it’s scary, and it’s not exactly every day stuff to you. I get it, and we’re here to help.
If you have more questions about the divorce process, check out our website, request one of our free books or reports, or come in for a consultation with one of our licensed and experienced Virginia divorce and custody attorneys.