Question: Can the divorce go through if you have not been served divorce papers?
Answer: No divorce action can be decided and a judgment entered unless the defendant or respondent (the terms differ depending upon what jurisdiction you’re in) has first been served with a summons and a copy of the complaint or petition for divorce (the terms differ depending upon what jurisdiction you’re in). If you have not been properly “served with process,” then the court does not have jurisdiction over you or over the divorce case and cannot issue a decree of divorce.
“Service of process” is the procedure by which the party who files a divorce action in court gives appropriate notice of the legal action to the defendant/respondent and court, so that 1) the court can legally exercise jurisdiction over the person served and the controversy between the parties, 2) the person served is given opportunity to respond to the complaint/petition filed with the court.
In Utah (and in every other state too), there are alternatives to personal service. I will describe Utah’s alternatives here.
Under certain circumstances, the summons and complaint may be served by mail or commercial courier service, as long as the defendant signs a document indicating receipt. If your spouse wants the divorce as much as you do and is willing to cooperate in effectuating service of process, your spouse may accept service of the summons and complaint by signing a document that acknowledges receipt of the summons and complaint, and then having you or your spouse file that “acceptance in lieu of personal of service” document with the court.
Your spouse’s attorney may also agree to accept service of a summons and complaint on behalf of the attorney’s client by signing a document that acknowledges receipt of the summons and complaint, and then filing that document with the court.
Some people falsely believe that if they are not personally handed a copy of the summons and complaint that the court can never acquire jurisdiction over the person and the divorce case. And so he/she refuses to come to the door when the process server knocks believing that as long as he/she refuses to accept the summons and complaint the divorce cannot be granted to his/her spouse. This idea is known as “evading service of process.”
If the identity or whereabouts of your spouse are unknown and cannot be ascertained through reasonable diligence, if service upon all of the individual parties is impracticable under the circumstances, or if there is good cause to believe that the person to be served is avoiding service, the party seeking service may file a motion to allow service by some other means.
If the motion is granted, the court will order service of the complaint and summons by means reasonably calculated, under all the circumstances, to give your spouse notice of the divorce action and an opportunity to respond. Forms of alternative service include an order from the court that you publish notice in the newspaper or an order that your spouse be e-mailed a copy of the summons and complaint, if you can prove to the court that you have an e-mail address for your spouse that he/she is using or likely to use. Alternative forms of service can get creative. Depending upon how hard it is to locate your spouse, the court may grant you permission to give notice the only ways you have available to you. If all you have for your spouse is a telephone number he/she will answer to, the court may even allow you to call your spouse or send him/her a text message to give notice of the lawsuit and tell your spouse that the summons and complaint can be found at the courthouse. If your spouse is active on Facebook, the court may allow you to notify your spouse by Messenger. As long as the means of service is reasonably calculated, under all the circumstances, to apprise your spouse of the action, the court can approve those means.
Here is the rule in Utah governing service of process: Utah Rules of Civil Procedure, Rule 4.
Utah Family Law, LC | divorceutah.com | 801-466-9277