What Happens After Serving Divorce Papers to Your Spouse?
Filing for Divorce: The Next Steps
You have filed for divorce and you may be wondering, “What now?” First of all, let’s talk about what “filing” for divorce means. If you are talking to a divorce lawyer or court personnel, “filing” for divorce means you have actually filed a Complaint for Divorce with the Court.
A lot of clients will say they have “filed” for divorce, when, in reality, what they mean is they have consulted with a divorce lawyer, retained a divorce lawyer, or sent their spouse agreement paperwork to consider.
Once you have filed your Complaint for Divorce with the Court, what comes next? Once your complaint is filed, it becomes an official pending case with the Court system. It will be assigned a unique case number. Then, the Clerk of court issues the Complaint with a Summons for service.
If your complaint is filed electronically, this happens automatically, and your lawyer receives the summons immediately in their email. If you are representing yourself and you paper-file a complaint at the courthouse, it takes more time for the clerk to process the hard copies.
Next, you (or your lawyer on your behalf) are responsible for having your spouse personally served with the Complaint for Divorce.
Who Can Serve Divorce Papers: Understanding Your Options
Service of process in a divorce case is dictated by Rule 4 of the Alabama Rules of Civil Procedure. Personal service can be affected by a process server, which may be either the sheriff’s department or “other designated person”, also known as a private process server.
A private process server can be any person over the age of nineteen, who is not a party to the case, and who is not related within the third degree by blood or marriage to the party seeking service of process.
We recommend that all of our clients use a private process server, as it has proven time and again to be the most efficient option for a fairly small expense, typically between $55.00 – $125.00. Another benefit of using a private process server is that you can communicate with them as to the best time to serve the Defendant.
This is especially important in divorce cases where often parties still reside together. There may also be domestic violence issues, so it is important to have your safety plan in place prior to service. You are not able to do any of this coordination with the sheriff’s department, which is why our firm recommends private process servers.
Service can also be accomplished via certified mail, but this method tends to be very unreliable as people anticipating litigation tend to not pick up their certified mail.
The Defendant may also accept service by picking up a copy of the Complaint and Summons from the Clerk of Court.
What Constitutes “Good” Service?
First, service must be accomplished within 120 days of the filing of your complaint, or your case will likely be dismissed by the Court.
Rule 4 of the Alabama Rules of Civil Procedure also sets out what is considered to be valid service under a variety of circumstances. If the Defendant is an adult, then they can be served by handing the paperwork directly to them, by leaving the paperwork at their residence with another competent adult who also resides there, or by delivering it to an agent authorized to receive service of process on their behalf (such as if they have someone with Power of Attorney).
If the Defendant is a minor, their parent or guardian must be served, and, if the minor is over the age of 16, they must also be served. If the Defendant is incompetent, then service is effected upon their legal guardian or other caregiver if there is no legal guardian.
If the Defendant is incompetent and confined to an institution for the mentally ill, then service must be effected upon the superintendent of the institution. If the person is incarcerated in prison or jail, they still must be personally served.
If the Defendant lives in another state, they may still be personally served by a private process server or by certified mail.
After Serving Divorce Papers: What to expect
After the divorce papers are served, the process server has to complete the return on service section of the summons which was previously issued by the clerk of court.
This form says the first and last name of the person served, the date and time of service, and includes the signature of the process server. The process server either returns this form directly to the court, or to your attorney for filing with the court.
Once the Defendant has been served, they will typically retain their own attorney to file an answer to the complaint for divorce and a counterclaim for divorce.
Your attorney receives copies of all filings via email, and we will send you copies of those filings the same day via your confidential, secure client portal.
Timelines and Wait Times
The date of service is the date that all relevant timelines begin to run. The Defendant has 30 days from the date they were served to file an answer to the complaint. We almost always serve discovery for the Defendant to answer along with the initial complaint.
Discovery is made up of questions the Defendant must answer and documents and other tangible items they must provide about issues relevant to the divorce case, such as assets, debts, and physical evidence. The Defendant has 45 days from the day they were served to answer their discovery in this fact situation. If they do not answer timely or completely, there are certain legal procedures we must follow to obtain their answers.
Discovery is typically the longest part of the divorce process, as we want to make absolutely sure we have complete information before taking your case to trial. Discovery can also include the filing of subpoenas for records to non-parties and depositions of the parties or other witnesses. The discovery process typically takes several months.
If your divorce case cannot be settled without a trial, it typically takes 6-12 months in Mobile County to get to a trial date after your complaint for divorce is filed and service is completed in your case.
If you are looking for a firm that can be there with you every step of the way to make sure things are done right, from the initial service of process all the way through the conclusion of your case through settlement or trial, contact Herlihy Family Law.
Author: Alison Herlihy
Family law attorney Alison Herlihy is a native of Mobile, Alabama. Alison has engaged in the private practice of family law since 2005, focusing primarily on domestic relations, divorce and child support, child custody law, adoption law, juvenile, probate practice, and wills.
Alison Baxter Herlihy earned the prestigious AV Preeminent peer review rating from Martindale-Hubbell, which recognizes attorneys for the highest levels of legal ability and professional ethical standards. Alison is a certified Guardian Ad Litem. In 2015, Alison became a Registered Mediator on the Alabama State Court Mediator Roster, in both general and domestic relations mediation.