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So, you’ve decided it’s time to move forward with your divorce…. it’s the first of many decisions you’ll make as you unwind your marriage and move on. The next decision is how to tell your spouse you’ve file a petition for divorce in court.
Before you decide, you should know these few legal points. A divorce is a lawsuit like any other so specific rules of civil procedure apply. Foremost, is the requirement that the Respondent in a lawsuit be given proper legal notice that suit has been filed against him or her.
The most common way of providing proper notice is to have a state-approved process server personally deliver the divorce petition with a citation to the Respondent… this usually happens at home or at work. The citation explains to the Respondent that he has been “sued” for divorce and instructs that an answer must be filed with the court to avoid default. The process server executes a return of service and files it with the court as proof that the Respondent has been served as required by law.
When the lawsuit is as sensitive and emotionally charged as a petition for divorce, a stranger placing those papers in your spouse’s hands can be a polarizing moment. You may wish to consider an alternative.
At Schreier & Housewirth we often mail the petition to the Respondent spouse along with a waiver of service and an explanatory letter. This way, your spouse can process the news in private and without embarrassment. He/She simply needs to sign the waiver of service before a Notary Public and return it to our offices for filing with the court. This has the same effect as if he were formally served with the petition.
So, if you and your spouse are moving through divorce methodically and you do not have concerns about your spouse harming you, your children, or the marital estate, consider having him/her sign the waiver of service.
On the other hand, if you have concerns or have obtained a temporary restraining order at the time of filing the divorce, you will want your spouse served with the suit by a process server to help protect yourself and your children from harm.
Divorce is so much more than pulling forms off the internet. You need and deserve the counsel of lawyers who have devoted their careers to helping clients navigate divorce. At Schreier and Housewirth, we listen, we understand, and we represent.