If you file for divorce, do you have to serve your spouse with papers?

Your spouse must be served with the summons and divorce complaint or petition before the case can proceed.

In my jurisdiction (as I believe it to be the case in all jurisdictions (you’ll need to review the law regarding who can serve the summons and divorce complaint or petition to be sure) you cannot serve your spouse yourself. A non-party to the case is required to serve the summons and complaint/petition.

Any time any lawsuit is filed against a defendant or respondent, the defendant/respondent must be served with legal process to ensure due process of law. What does “served with legal process” mean?

Black’s Law Dictionary defines it this way:

service of process. The formal delivery of a writ, summons, or other legal process, pleading, or notice to a litigant or other party interested in litigation; the legal communication of a judicial process

process n. (14c) 2. A summons or writ, esp. to appear or respond in court <service of process>. — Also termed judicial processlegal process.

Process is so denominated because it proceeds or issues forth in order to bring the defendant into court, to answer the charge preferred against him, and signifies the writs or judicial means by which he is brought to answer.” 1 Joseph Chitty, A Practical Treatise on the Criminal Law 338 (2d ed. 1826).

Being served with process is essential to due process of law. What does due process mean? Black’s Law Dictionary defines it this way:

due process (16c) The conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case. — Also termed due process of law; due course of law. See FUNDAMENTAL-FAIRNESS DOCTRINE.

“The words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice;

“Due process of law in each particular case means, such an exertion of the powers of government as the settled maxims of law sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.” Thomas M. Cooley, A Treatise on the Constitutional Limitations 356 (1868).

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections … The notice must be of such nature as reasonably to convey the required information.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657 (1950).


Utah Family Law, LC | | 801-466-9277

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