View the Divorce Tookit for more information about divorce.
What Is "Service of Process"?
When you file a lawsuit of any kind, you must tell the other side they have been sued. The court cannot take any action against the other side unless you have completed this task. You must prove to the court that you have notified the other person about the case you filed against them, and that you have given the other side the opportunity to come to court and tell the judge their side of the story. The legal term for notifying the other side about the case is "service of process," or, “service.”
There are a variety of ways to do this. Some of the methods provide absolute certainty that the other side has been notified. Some methods leave some uncertainty about whether the other side has been informed or not. If the method of "service of process" has some uncertainty whether the other side has been notified, then the power of the court to decide disputes between you will be more limited. So it is important to achieve the best possible "service of process" on the opposing party.
How does my spouse get served with the divorce papers?
You personally cannot be the one who serves your spouse. Almost always, any adult other than the husband or wife can serve the divorce petition. The type of service depends on your situation. Some may not work for you. The different types are:
- Personal service,
- Certified mail,
- Service by publication (a legal ad in a newspaper),
- Service by picking it up at the courthouse or another location,
- Service by Secretary of State, and
- Waiver of service.
What does "personal service" mean?
When the court papers are personally delivered to the opposing party, while they are in the state of West Virginia, then you have achieved "personal service." This is the best method of service. This means the court will have “personal jurisdiction” over your spouse. Personal jurisdiction means that the family court judge can make decisions about any and all issues in the case. These decisions can include the spouse's property, debts, money, and obligations.
If you cannot obtain personal service, the judge is limited. The judge can decide whether the husband and wife can get a divorce. The judge can decide custody if the children are in the state, but not if they are in another state. The judge may not be able to divide property and debts if you have not obtained personal service. When your spouse lives in West Virginia, you have more options. A deputy sheriff can serve the divorce petition on your spouse. The deputy hands it to him or her in the county where he or she lives or works, in West Virginia. Or, you can have a private process server deliver the court papers to your spouse. A private process server is someone you pay to serve court papers on the other person. Or, you may have a friend serve the court papers on your spouse.
After serving the papers, the server has to file a written statement that your spouse was served. This is called a “return of service.” This statement must be filed in the circuit clerk’s office in the county where you filed your divorce. Filing this statement completes the service.
A few weeks after you file the divorce petition, you need to call the circuit clerk’s office. Find out if the server has filed the return of service. You cannot take any further steps in the case until the "return of service" has been filed.
Can I do service by certified mail?
"Certified mail, return receipt requested" can be used. But again, there is an important difference if your spouse lives in West Virginia, or in another state.
Spouse lives in West Virginia: Service by certified mail upon a spouse living in West Virginia will achieve "Personal Service of Process," BUT ONLY IF your spouse signs the postal receipt to verify they in fact received the certified mail. Service is not complete until the circuit clerk receives a signed receipt for the mail. This will not work if your husband or wife refuses to sign for the mail. You should not try certified mail to a person in West Virginia unless you are absolutely positive that your spouse will sign for it.
Spouse lives outside West Virginia: Even with a signed postal receipt, you cannot get Personal Service of Process on a spouse who lives outside West Virginia. You will be able to get a divorce. But the court's authority to handle other disputes with your spouse may be limited because you have not achieved Personal Service.
Can my husband or wife pick up the divorce papers?
Yes. Many times your spouse may prefer doing this, so they don't have to be served with the papers at work, or at their home. This will accomplish Personal Service, too, which is what you would prefer. This gives the court personal jurisdiction to make decisions about property. But keep in mind - this works only if your spouse cooperates.
The husband or wife can pick up the court papers either at the Circuit Clerk’s office or at the sheriff’s office. You need to tell the circuit clerk when you file the divorce petition where your spouse has agreed to pick up the court papers. You should check back to make sure your husband or wife actually came in to pick up the petition.
What is service by publication?
Service by publication is a last resort. You use it when you cannot find your husband or wife. This means a legal advertisement is published a local newspaper, announcing that you have filed your case. The legal ad must run in the paper for two weeks in a row.
The clerk's office will prepare a form notice for the ad. You can take the notice to the newspaper office and pay the newspaper the cost of publication (usually just under $100). In some West Virginia counties the circuit clerk’s office will take your publication fee and send everything to the paper. In others you must do this yourself. Ask your clerk’s office about this.
You may feel you cannot afford to pay the cost of the legal advertisement. You should ask the clerk to file a "fee waiver affidavit." You might not be billed for the ad if you have filed a fee waiver affidavit, but this process can be slow. Some newspapers will not print the legal ad until they have been paid for the legal ad. Waiting for the fee waiver affidavit process could slow your divorce case down.
Service by publication means the family court judge may not be able to decide certain types of disputes. The judge may not be able to rule on child support or the property you and your spouse have together.
What is service by Secretary of State?
This type of service is for child support. It is used if the parent lives out of state. You need an extra copy of your divorce petition. You also need your spouse’s address. It is processed through the Secretary of State’s office. Ask the court clerk's office for more information about how to do this.
What is a "waiver of service"?
A waiver of service is a signed statement by your spouse that he or she agrees for the case to go forward without even being served. For example, they may have gotten the papers from you. They plan to file their response and participate in the case. But they agree that there's no need for the full formal procedure to accomplish "service of process." It's a way to simplify things and speed the case along.
A "waiver of service" applies only if your spouse cooperates. Your spouse will have to sign a statement in the circuit clerk’s office. The waiver of service must also be signed by a notary public. If your spouse doesn't sign the waiver, then you'll need to meet the requirements for Service of Process.
View the Divorce Tookit for more information about divorce.