Most people have a pretty good idea of how the divorce process works. It is the first few steps of the divorce process that make people realize “maybe I don’t know as much as I should.” The first flummoxing step for most people filing an Illinois divorce is serving their spouse with the divorce papers.
“After the filing of the petition, the party filing the same shall, within 2 days, serve a copy thereof upon the other party, in the manner provided by rule of the Supreme Court for service of notices in other civil cases” 750 ILCS 5/411(b)
Service Is Not Necessary If The Spouse Agrees To Participate In The Divorce
The point of serving a spouse in a divorce is so that the spouse has notice of the divorce proceedings. If the spouse actively wants to participate in the divorce process, there is no need for service. The spouse can simply file their own appearance.
“In order to have a valid judgment the court must have both jurisdiction over the subject matter of the litigation and jurisdiction over the parties. Personal jurisdiction may be acquired either by the party’s making a general appearance or by service of process as statutorily directed.” In re Marriage of Verdung, 535 NE 2d 818 – Ill: Supreme Court 1989
After your spouse’s appearance is filed, you can prepare a proposed Judgment For Dissolution of Marriage and an accompanying Parenting Plan and/or Marital Settlement Agreement to finalize the divorce by agreement entirely.
If you cannot arrive at a full and complete agreement with your spouse, you can begin to issue discovery and file temporary motions once your spouse has filed their own appearance.
If a spouse will not happily file their own appearance, then you must serve your spouse in order for the divorce to proceed.
Can A Spouse Serve Their Own Spouse The Divorce Papers?
There are two ways to effectuate service in Illinois: personal service and substitute service.
Personal service is achieved “by leaving a copy of the summons with the defendant personally.” 735 ILCS 5/2-203(a)(1)
Substitute service is achieved “by leaving a copy at the defendant’s usual place of abode, with some person of the family or a person residing there, of the age of 13 years or upwards” 735 ILCS 5/2-203(a)(2)
Illinois law requires that service be performed by a sheriff.
“Process shall be served by a sheriff” 735 ILCS 5/2-202(a)
Most people just hire the sheriff. The sheriff’s priorities are catching dangerous criminals not serving divorce litigants (and rightfully so!).
I have found the sheriffs to be inconsistent in the timing and success of their service of divorce litigants. So, I hire special process servers instead of the sheriff. Curiously, the same law that requires the sheriff also allows non-sheriffs to serve lawsuit defendants.
“It is not necessary that service be made by a sheriff” 735 ILCS 5/2-202(a)
In lieu of the sheriff, the court can appoint a private person to serve the opposing side in a divorce action. This non-sheriff person who serves divorce papers is called a special process server.
“The court may, in its discretion upon motion, order service to be made by a private person over 18 years of age and not a party to the action.” 735 ILCS 5/2-202(a) (emphasis mine)
If you file a motion to appoint a special process server and ask to use someone else to serve your spouse, the court MAY grant that motion. The court cannot allow a spouse to serve their own spouse in an Illinois divorce.
Just Hire Someone To Server Your Spouse. Or Better Yet, To Do Your Whole Divorce
The requirement that a third party effectuate service makes sense. Less scrupulous spouses would simply testify that they served their spouse without actually engaging in the confrontation that personal service requires. Subsequently, the spouse who allegedly served their spouse would default that spouse and, thereby, be granted all the relief they sought. When the defaulted spouse finally discovers they are divorced, the defaulted spouse would be required to vacate the default order. When the order is vacated, the divorce would start from scratch all over again.
OR you could serve your spouse and your spouse could simply deny they were properly served. For personal service, it will be their word against yours. For substitute service, the third party you served at your spouse’s residence is probably more credible than you as they are “disinterested.” Without verified service the divorce cannot proceed.
For $ 75 a sheriff or special process server will serve your spouse and give you an affidavit describing the date, time, location of service and even describe your spouse the time they were served. It is worth $ 75 to be assured that service is performed properly and your Illinois divorce proceeds apace.
Service is a great example of how the law works. The law requires notice. The law gives different options for notice. The law then has specific ways that notice is not allowed. You have to know the principle, the rule and the exception to the rule in order to get the legal result you want.
Service is but one part of the broad field of family law which I have explored in 500+ articles on this site. Do you really want to learn the hundreds, if not thousands, of principles, rules and exceptions to the rules of Illinois divorce law?
If you’d like to talk with me about starting…and finishing your divorce, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Chicago divorce attorney.
