Do I have to serve my husband or wife in my Chicago, Divorce?
We’ve all seen the movies where a stranger nonchalantly hands a character some documents and quietly says, “You’ve been served.” The character then looks at the papers with surprise and is completely devastated. Because of scenes like this we dread the idea of serving someone or being served. In reality, service is just handing a paper over to someone and then filing an affidavit with the court stating that you did so.
The whole procedure is formally called “service of process.” It’s the act of giving the initial complaint to the other party so they are officially on notice regarding the law suit and know how many days they have to respond. It works the same in a divorce case as any other civil litigation case.
“Serving a copy of a summons and complaint on a party-defendant is an essential part of the litigation process and allows a court to obtain personal jurisdiction over that defendant.” Urban Partnership Bank v. Ragsdale, 2017 IL App (1st) 160773, ¶ 18. “If a party is not properly served with summons, the trial court does not obtain personal jurisdiction over that party.” In re Marriage of Schmitt, 321 Ill. App. 3d 360, 367 (2001)
I don’t want to serve anyone. I know my clients don’t want to serve anyone. I know the opposing parties don’t want to be served. All the opposing party needs to do is file their own appearance with the court and no service is necessary.
Once an appearance is filed, service of all documents can be via email.
“Unless otherwise specified by rule or order of court, documents shall be served electronically.
(1) Electronic service may be made
(i) through an approved electronic filing service provider (EFSP) or
(ii) to the e-mail address(es) identified by the party’s appearance in the matter.
If service is made by e-mail, the documents may be transmitted via attachment or by providing a link within the body of the e-mail that will allow the party to download the document.” Ill. Sup. Ct. R. 11(c)
My personal policy is to file the divorce and then send the respondent a letter or email advising them of the filing and giving them two weeks to file their own appearance or hire a lawyer who will file the appearance for them.
“If a party is represented by an attorney of record, service shall be made upon the attorney. Otherwise service shall be made upon the party.” Ill. Sup. Ct. R. 11(a)
Typically, I will also prepare some or all of the final documents along with this notice so as to ease the anxiety for the other party in hopes of securing their cooperation.
If the two weeks pass, I file a motion to appoint a special process server and deliver that notice to the respondent. The respondent is usually served the next day before the respondent even has a chance to finally get their appearance on file.
But, when the service of process is necessary, we have to follow the formal rules.
How To Serve Divorce Papers In Illinois
Illinois law requires that service be by a sheriff.
“Process shall be served by a sheriff” 735 ILCS 5/2-202(a).
But, then, just a few paragraphs later in the same law it says, “It is not necessary that service be made by a sheriff” 735 ILCS 5/2-202(a)
99% of divorce lawyers who practice in Chicago, Cook County, Illinois use special process servers.
The Illinois statute requires divorce lawyers to motion the court to appoint 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).
Entering the motion is an extra moment in court but divorce lawyers like me are in court every day anyways.
The advantage of a private process server over the sheriff is two-fold:
- The private process server does not announce themselves by driving a sheriff’s truck and wearing a sheriff’s uniform. For example, my process server is a middle-aged woman. She walks in anywhere and people just assume she belongs there.
- Private process servers also don’t give up. The Cook County Sheriff goes to the respondent’s residence or work three times and if service isn’t achieved they simply report “returned not served.” A private process server will keep trying until they have served the respondent. A private process server will go to multiple locations while the Sheriff will not.
Private process servers also typically charge the same amount that the Sheriff does for service of divorce papers: $ 75.
You aren’t even required to serve the person directly and personally.
“[S]ervice of summons upon an individual defendant shall be made (1) by leaving a copy of the summons with the defendant personally, (2) 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). The respondent cannot simply run away and not accept service.
Merely laying the divorce papers at the respondent’s feet has always been viewed by the courts as sufficient.
If the respondent alleges that the service was insufficient, the respondent must file an appearance to contest the service of process…which automatically gives the respondent notice. Unless, of course the respondent files a special limited-scope appearance to contest the service of process…which means we’ll just serve the respondent in court (again) when they appear in court on that special appearance.
After service the respondent has 30 days to file their appearance and response to the petition for dissolution of marriage or the respondent can be defaulted. A default divorce means the court will award you anything you asked for (within reason) in your original petition.
“In a proceeding for child support following dissolution of the marriage or civil union by a court that lacked personal jurisdiction over the absent spouse, and in which the court is requiring payment of support for the period before the date an order for current support is entered, there is a rebuttable presumption that the obligor’s net income for the prior period was the same as his or her net income at the time the order for current support is entered.” 750 ILCS 5/505(a)(4.5)
Your spouse cannot merely say “I never got the divorce papers.” A simple denial of having been served without corroborating evidence “offers nothing that approaches the kind of substantial and competent evidence necessary to impeach the return of service.” Charles Austin, LTD. v. A-1 Food Services, 2014 IL App (1st) 132384
Contact my Chicago, Illinois law firm to schedule a free consultation and learn whether you have to serve your husband or wife in your pending divorce.