Recently, I read an interesting article about a dispute between neighbors concerning the cutting of trees along a shared property line. One of the neighbors, a candidate in an ongoing city council election campaign, was actually served with papers advising her of the lawsuit while she was participating in a public debate sponsored by a community association. The peculiar circumstances surrounding service on the defendant prompted me to consider the requirements and limitations for serving (or legally delivering) notification of legal action – specifically serving divorce papers – in Virginia.
Service of Divorce Papers May be Less Than Discreet
Just as the reported dispute between neighbors concerning treatment of trees on a fence line escalated into legal action defined by very public notification of the resulting lawsuit, so it is not uncommon for a partner in a troubled domestic relationship to be served with divorce papers in a less-than discreet manner. In the Commonwealth of Virginia, one of the most critical legal steps required to initiate divorce proceedings is the service of process of the divorce papers on the spouse against whom an action of divorce is being brought. Essentially, service of the papers constitutes the official means of notification concerning the divorce action.
To ensure that the notification is effective and affords the best possible means of alerting a party to the divorce action, there are strict guidelines that must be followed in accomplishing service. While personal service is the best assurance of notification, practical realities may prevent such notification. In that event, Virginia law provides for alternative means of service which may bring others into the notification process and result in more expansive broadcasting of the fact that a divorce action has been initiated.
Alternative Means of Divorce Paper Service
Virginia law provides various alternative means of accomplishing legal service of divorce papers if the spouse named in the divorce action (the defendant) can be located.
1.The papers can be served in person, either at the defendant’s residence or another location. Usually this is accomplished by a Deputy Sheriff or a comparable official.
2. The papers can be given to a member of the defendant’s household, so long as the person receiving delivery is at least 16 years old. Delivery in this manner also generally is accomplished by a Deputy Sheriff. The law imposes the reasonable age (16 or older) requirement in this alternative delivery method in order to maximize the likelihood that the papers served will eventually reach the spouse named in the divorce action.
3. The divorce papers can be posted on the defendant’s door and sent to the defendant via first class mail.
4. The papers can be served on the defendant by mail alone, if the defendant will accept and sign for them upon delivery.
What if You Don’t Know Where Your Spouse Is?
If after diligent effort by the party filing for divorce, the defendant cannot be located to allow service by any of the above mechanisms, service of divorce papers can be accomplished by publishing them in a local newspaper. The term “diligent effort” is somewhat ambiguous; however, most courts in Virginia agree that the “diligent effort” requirement can be satisfied by such actions as contacting the defendant’s relatives, co-workers, friends, employer, or other known associates to determine where the defendant resides.
This “virtual service” through newspaper publication is a last resort service alternative for a number of reasons. Not only is it far less reliable as a guaranteed form of notification to a defendant in a divorce action, but it also can be expensive. Costs for newspaper publication can range from $150 to over $600, depending on location and the circulation size of the newspaper. A party seeking a divorce who cannot afford such publication costs may petition the court for a waiver of the newspaper publication requirement. If granted, the waiver permits posting of the divorce notice on the courthouse entrance and mailing of the divorce papers to the defendant’s last known address.
I’ve Served the Divorce Papers – Now What?
After you have served the papers under one of the acceptable means, the defendant spouse has 21 days to respond, but oftentimes attorneys will request/receive extensions of time to respond informally from one another, or formally from court by motion. However, in Virginia, if a defendant does not respond to the notification of divorce action, the court will continue the divorce proceedings as long as the court determines the papers were properly served under one of the mechanisms described above.
Clearly, effective service of divorce papers is critical to the progression and resolution of a divorce action. Service on a defendant in a divorce action can be far more complicated than effecting a simple personal delivery and can require extensive research and detective work. A seasoned domestic relations attorney will be very well-versed in the service requirements of various jurisdictions and can help significantly when it comes to this important step of the process – taking account of the specific circumstances of the parties involved.