What does it mean to have my spouse served in a divorce? In a divorce proceeding, the spouse who files for the divorce is known as the Plaintiff. To start the process of a divorce in Birmingham, the Plaintiff must file a Complaint in the Circuit Court, which will contain the terms of the divorce that they are hoping to receive as relief. This could include alimony, child support, child custody, marital property, and more. After filing the Complaint, the Plaintiff must then serve the other spouse, the Defendant.
Each Defendant in a divorce action has a right to due process, so they must be served in a way that is reasonably calculated to give them actual notice of the divorce proceeding. By serving the Defendant, they are given an opportunity to be heard before the court. To have a spouse served, a copy of the Complaint must be delivered to the Defendant in person or by certified mail, which gives the Plaintiff a certificate to prove the Complaint was delivered to the Defendant. This certificate includes the Defendant’s signature affirming that they received the Complaint. If service is done in person, it is usually delivered by a sheriff, or an individual that specializes in service of process, who personally goes to the Defendant and hands them the Complaint in the contested divorce in Decatur or anywhere else in Alabama. Service is usually made at the Defendant’s house or workplace. After service is completed, there must be a return of service, or mail certificate, that includes the name, address, and phone number of the individual who served the Defendant, which will also serve as proof that service was delivered.
Service of process must conform to certain rules, or the divorce action in Calhoun County, or anywhere else, may be dismissed. Because of this, it is very important that the Defendant is properly served. If the Defendant cannot be located to where service cannot be served in person or through certified mail, then service can be done properly if notice is given by publication. To serve by publication, notice must be published in a local newspaper that is generally circulated throughout the county where the Complaint was filed. The published notice must be circulated for four weeks at a time, without a response, in order for it to be considered complete. Then, the publisher of the newspaper must complete an affidavit and provide a copy of the publication to prove to the court that service was properly delivered.
Service of process can be accepted or waived, but it must be done in writing with the Defendant’s signature. If the Defendant claims that they were not served, then they must prove this by clear and convincing evidence, which requires the Defendant to show that the evidence is highly probable and substantially likely to be true. If it is claimed that service was invalid or not done properly, then the burden of proof is on the Plaintiff to prove that service was delivered according to the law. As long as process was properly served to the Defendant, the divorce proceeding may continue.
Attorney Steven A. Harris regularly blogs in the areas of family law, bankruptcy, probate, and real estate closings on this website. Mr. Harris tries to provide informative information to the public in easily digestible formats. Hopefully you enjoyed this article and feel free to supply feedback. We appreciate our readers & love to hear from you!