PUJA SACHDEV | October 26, 2020 | Divorce Lawyer
When one spouse decides to file for divorce or asks for a modification of a child custody order, they are required by law to inform the other party that they have started the legal process of divorce.
Often this task will be completed by a professional process server. A process server is an individual who has the authority of the court to deliver legal notices to defendants in a case. As you might imagine, in a divorce or any other family law case for that matter, the defendant might not be eager to receive such legal notices and will make it difficult for the server to get the papers into their hands.
To combat against this, process servers are known for being creative and finding unique ways to serve defendants with the legal notices they have been tasked to deliver. There are, however, strict rules and regulations outlining who can be a process server and what they can and cannot do when tracking down the parties they need to serve.
The following are some of the most notable aspects of what a process server can do to serve papers.
Who Can Be a Process Server
There are many professional process servers who are hired to deliver papers to defendants in legal cases. However, in the state of California, anyone over the age of 18 who is not involved in the case at hand can technically be a process server.
- County Sheriff
All the person needs to do to fulfill their obligations as a process server is deliver the legal notices within a specific timeframe, fill out a proof of service form detailing when and where they served the papers and to whom they served them, and turn in the form to the court that has jurisdiction over the case.
Personal Service: Dos and Don’ts
The most common way a process server delivers legal notices to defendants is called personal service. With personal service, the process server locates the defendant, either at their home, workplace, or a public area, and gives them the papers.
In order for personal service to be considered valid, the process server has several things they can and cannot do and some things they have to do. For instance, a process server has to confirm the identity of the person they are serving, hand them the papers, and then inform them of the nature of the papers.
If the person refuses to take the papers, the process server can set the papers on the ground near the person and the service is still considered valid.
However, if a process server is having difficulty serving papers, there are a number of things they cannot do which are also worth mentioning.
- They cannot trespass or break into someone’s home.
- They cannot impersonate police.
- They cannot harass or threaten anyone.
If a process server is having difficulty finding the person they are supposed to serve, there are other ways they can legally serve the papers. However, because personal service is the most reliable method of service, it is often required that a server at least attempt personal service. Finally, some of the following alternative methods can only be pursued with permission from a judge.
Other Types of Service
Because personal service doesn’t always work, other ways of serving papers are commonly used to get legal notices into the hands of defendants. Some of the most common methods include:
- Service by Mail: the process server mails the legal notices to the defendant and then fills out the proof of service and submits it to the court.
- Substituted Service: if the process server has failed to find the defendant after three tries, he or she can leave them with another member of the defendant’s household. The person the papers are left with does need to be 18 years of age or older.
Other methods of serving include service by publication and service by posting. The former refers to legal notices being published in a widely circulated newspaper in the area, while the latter refers to posting the legal notice somewhere in the courthouse itself. Both service by publication and service by posting are only possible with written permission from a judge.