MY SPOUSE DISAPPEARED AND I WANT A DIVORCE. HOW?
HOW TO SERVE THE SUMMONS AND PETITION FOR DISSOLUTION OF MARRIAGE/LEGAL SEPARATION.
Please read the entire article to have a better understanding about manners of service and requirements.
Documents to be served on respondent:
Upon filing for dissolution of marriage or legal separation you most likely have the following forms and notices in hand:
- Summons (form FL-110);
- Petition for Dissolution or Legal Separation or Nullity of Marriage (form FL-100);
- Venue Declaration (form D-049);
- UCCJEA (form FL-105), if you have minor children;
- Notice of Assignment, issued by the court; and
- Notice of hearing, issued by the court.
Additionally, you will need to serve respondent with blanks of the following forms:
- Response and Request for Dissolution or Legal Separation or Nullity of Marriage (form FL-120); and
- UCCJEA (form FL-105), if you have minor children.
Forms can be found here:
https://www.courts.ca.gov/documents/fl120.pdf
https://www.courts.ca.gov/documents/fl105.pdf
Who may serve:
Any person, who is not a party (you cannot serve) to the proceeding and is at least 18 years old, can serve the above documents (hereinafter “Dissolution/Legal Separation Packet”) on respondent.
Manners of Service:
There are 4 manners of service you can use, please see explanation of each manner below, it is strongly advised to use personal service instead of any other manners of service.
- Personal Service – actual physical delivery of the Dissolution/Legal Separation Packet to respondent. Proper personal service is deemed to be complete at the time of delivery.
- Substitute service – if Dissolution/Legal Separation Packet cannot with reasonable diligence be personally delivered to respondent, the documents can be served by leaving a copy of them at respondent’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the Dissolution/Legal Separation Packet by first-class mail, postage prepaid to respondent at the place where a copy of the Dissolution/Legal Separation Packet was left. Service in this manner is deemed complete on the 10th day after the mailing.
- Service by mail – the Dissolution/Legal Separation Packet shall be mailed (by first-class mail or airmail, postage prepaid) to respondent, together with two copies of the Notice and Acknowledgment of Receipt (form FL-117) and with a return envelope, postage prepaid, addressed to the sender. Service is deemed complete on the date a written Acknowledgement of Receipt (form FL-117) is executed, if such acknowledgement thereafter is returned to the sender.
Service by publication – the Dissolution/Legal Separation Packet may be served by publication if upon affidavit it appears to the satisfaction of the court that respondent cannot with reasonable diligence be served in another manner specified above and that either:
a. A cause of action exists against respondent or he/she is a necessary or proper party to the action.
b. Respondent has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property.
Instructions:
Step 1:
Put the Dissolution/Legal Separation Packet together. You need to serve the following forms (please see detail explanation above): FL-100, FL-110, FL-105, D-049, a notice of case assignment (issued by the court), a notice of hearing (issued by the court), blanks of the form FL-120 and form FL-105.
Step 2:
Find a person who is willing to serve the Dissolution/Legal Separation Packet on respondent and who is 18 years old or older.
Recommendations:
1) This person can be your friend, relative or professional process server.
2) Please don’t involve your adult children in this process, technically they can serve the Dissolution/Legal Separation Packet, but this approach should be avoided.
3) Additionally, it is recommended not to serve the Dissolution/Legal Separation Packet in the presence of any children.
Step 3:
a. If you choose personal service:
i. Ask a person who is going to serve the Dissolution/Legal Separation Packet to fill out 2 forms of the Proof of Service (form FL-115) before serving the Packet. These 2 forms have to be identical.
The form can be found at:
https://www.courts.ca.gov/documents/fl115.pdf
ii. Upon serving the Dissolution/Legal Separation Packet on respondent a person who serves will need to state a date and time (page 1 of the form FL-115, item #3a) when respondent was served and signed the Proof of Service (form FL-115). Again, this person has to sign 2 forms of the Proof of Service.
iii. A person who serves the Dissolution/Legal Separation Packet on respondent needs to give one original copy of the Proof of Service (form FL-115) to respondent and the second one to you.
iv. You have to make 2 additional copies of the Proof of Service (form FL-115) and file them (total of 3: 1 original and 2 copies) with the court.
b. If you choose substitute service:
i. This manner of service can only be used if the Dissolution/Legal Separation Packet cannot with reasonable diligence be personally delivered to respondent.
ii. The same person who tried but was unable to personally serve the Dissolution/Legal Separation Packet on respondent has to complete substitute service.
iii. A person will need to leave the Dissolution/Legal Separation Packet with a competent person who is at least 18 years old and inform him/her of the contents thereof.
Please see a detail explanation above.
iv. Upon leaving the Dissolution/Legal Separation Packet with a competent person and informing him/her of the contents thereof, a person who served the documents needs to mail by first-class mail, postage prepaid a copy of the same documents to respondent at the place where the documents were left.
v. Additionally, a person who served the documents needs to draft a declaration of due diligence. The declaration should describe in detail exactly what attempts were made to locate respondent personally, when they were made, how many such attempts were made, explain obstacles and give the declaration to you.
vi. A person who served the Dissolution/Legal Separation Packet on respondent needs to fill out and give the original copy of the Proof of Service (form FL-115) to you.
vii. You have to make 2 additional copies of the Proof of Service (form FL-115) and of the Declaration and file them (total of 3: 1 original and 2 copies) with the court.
c. If you choose service by mail:
i. Ask a person to fill out 2 forms of the Proof of Service (form FL-115) and 2 forms of the Notice and Acknowledgment of Receipt (form FL-117) before serving the Dissolution/Legal Separation Packet.
The forms can be found at:
https://www.courts.ca.gov/documents/fl115.pdf
https://www.courts.ca.gov/documents/fl117.pdf
ii. A person has to mail the Dissolution/Legal Separation Packet by first-class mail or airmail, postage prepaid to respondent, together with two copies of the Notice and Acknowledgment of Receipt (form FL-117) and 1 copy of the Proof of Service (FL-115) and a return envelope, postage prepaid, addressed to the sender.
iii. Upon receiving a signed copy of the Notice and Acknowledgment of Receipt (form FL-117) from respondent you will have to file the Proof of Service (form FL-115) (total of 3: 1 original and 2 copies) and Notice and Acknowledgment of Receipt (form FL-117) (total of 3: 1 original and 2 copies) with the court.
d. If you choose service by publication:
i. Service by publication is the least likely manner of service.
ii. A person who was unable to serve respondent with the Dissolution/Legal Separation Packet will need to draft a Declaration of Due Diligence. The declaration should describe in detail exactly what attempts were made to locate respondent personally, when they were made, how many such attempts were made, explain obstacles and give the original to you.
iii. You need to complete and submit to the court the following forms, along with the Declaration of Due Diligence:
1. Application for Order for Publication or Posting (form FL-980); and
2. Order for Publication or Posting (from FL-982).
Forms can be found at:
https://www.courts.ca.gov/documents/fl980.pdf
https://www.courts.ca.gov/documents/fl982.pdf
iv. The court can only authorized this manner of service if upon the Declaration of Due Diligence it is satisfied that respondent cannot with reasonable diligence be served in another authorized manner.
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