What’s the Process Behind Serving Divorce Papers?
What’s the Process Behind Serving Divorce Papers?
Deciding on divorce is a hard road for many, but it’s only the start of the process. It’s important to understand what divorce papers are and the many requirements surrounding them to successfully begin divorce proceedings.
Hitting deadlines, meeting requirements, and obeying the law can be difficult, especially in emotionally trying times, so it can be helpful to get legal advice from a divorce attorney before serving divorce papers.
What Has to Happen Before a Spouse Can Serve Papers?
Any legally married spouse can begin the divorce process in North Carolina. The state they were married in doesn’t matter, but there are two requirements they’ll have to meet:
- One spouse must be a legal resident that’s lived in the state for at least six months.
- The spouses must have lived apart for one year.
There’s no paperwork to begin the separation, but the spouses must live separate and apart for an uninterrupted one-year period, with one spouse intending to end the marriage in that time. If you and your spouse are eligible, the next stage is completing the required court forms and filing them with the court clerk’s office.
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The spouse who files the initial divorce papers (the plaintiff) will have to collect and complete several important court papers and file them with the Clerk of Court before they’re ready to go to the other spouse (the defendant).
The complaint for absolute divorce
This is the request for the judge to grant an absolute divorce, which is the complete dissolution of marriage between spouses. The divorce complaint is paperwork that includes the allegations necessary to show the court that the plaintiff is entitled to the divorce, such as:
- An allegation that one of the parties has resided in North Carolina for six months
- The date of marriage
- The date of separation
- A statement that the spouses have lived separate and apart for over a year
- Information about any children of the parties under 18
A notary will need to be present when you sign off on the complaint.
The domestic civil action cover sheet
Next, this document helps the court direct the case properly. It’s required for the court clerk to begin a civil proceeding—in this case, the divorce. This form contains administrative information for the Clerk’s office. A notary does not need to witness this signature.
The civil summons
The summons is the form that tells the defendant that their spouse has filed a lawsuit against them and that they have 30 days to respond. It will include the plaintiff’s name as well as the defendant’s name and address. This information will help down the line in case a sheriff has been tasked with delivering the summons.
Servicemembers Civil Relief Affidavit
This is another form that the plaintiff signs in front of a notary. This document provides information stating that the defendant is not a member of the military. This is required because federal law does not allow proceedings against deployed military members.
Additional court documents could be necessary if the petitioner can’t afford the fees or the defendant is a member of the military. Once the court has these papers, the court clerk will file the documents and issue a summons to accompany a copy of the complaint. These are the divorce papers that are served to the defendant.
How Does a Spouse Serve Divorce Papers?
The first thing to remember is the petitioner can’t personally serve the papers themselves. They must go through an acceptable method of delivery and receive proof of service for the court to consider it formal notice:
- Sheriff: For a fee, the sheriff can deliver the papers to the address listed on the summons or at the defendant’s place of employment. Upon delivery, the sheriff will make a note on the summons and return it to the clerk.
- Professional process server: A process server’s job is to deliver notice of legal action. While a sheriff can only serve papers in the county of their appointment, a petitioner can use a process server for personal service across North Carolina and out of state.
- Voluntary acceptance: If the defendant isn’t going to contest the action, they can accept service. In this case, the divorce papers will also include an acceptance of service form that they can sign in front of a notary. The document then has to be returned to the clerk of the court for filing.
- Certified mail: The petitioner can also choose to send the spouse notice by certified mail, as long as there’s a return receipt requested for proof of service. The authorized delivery service will have the defendant sign for the documents, confirming delivery. The proof of delivery will have to make its way back to the courts by way of the petitioner.
- Publication: When the petitioner has exhausted all reasonable methods, service by publication is the remaining option. The spouse will have to print a notice once a week for three straight weeks in a newspaper that’s been in circulation for at least six months and is published continually at least every week. After the three scheduled printings, the newspaper will provide an Affidavit of Publication that goes to the clerk’s office.
What Happens After There’s Proof of Service?
Once the petitioner has successfully served the divorce papers, the defendant has 30 days from when they were served to answer, submit counterclaims, or ask for an extension. Once the defendant answers or the 30 days are up, the plaintiff can file a Motion for Summary Judgment. A hearing will be scheduled and the Judgment of Divorce signed by the judge if all the required parameters of a divorce are met. The Judgment of Divorce is the final step.
What Is the Effect of The Divorce?
The Judgment of Divorce terminates the marital relationship and all the legal rights as a spouse. It is very important to note that if a Judgment of Divorce is granted and there are not claims for equitable distribution or alimony pending at the time of the Judgment, those rights are lost forever. This means that a person who wants to seek a property division or needs alimony must file the claim before the divorce is final. If the parties have signed a Separation Agreement or entered into a Consent Order on either of these issues, that agreement should not be affected. The Judgment of Divorce does not affect child custody or child support.
Contact Myers Law Firm if You Need Help
We understand that divorce isn’t easy, and it can be made even harder when there’s a flurry of rules to follow before the process can even begin. We’re here to help those in need understand and navigate the process, whether they’re drafting divorce papers or on the receiving end.
Myers Law Firm has more than 60 years of combined experience working with clients to manage the divorce process from the very beginning. If you need help with divorce papers or any other aspect of family law matters, call us at (888) 376-2889 or fill out our online form today.
References
N.C. Gen. Stat. § 50-16. 1A. (2015)
North Carolina Equal Access to Justice Commission. (2019, September). North Carolina Divorce Packet. https://www.nccourts.gov/assets/inline-files/NC-Divorce-Packet-V1-1-Sept-2019_1.pdf
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.
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