Spouse Won’t Accept Divorce Papers?
One of the initial steps of a divorce is serving a Complaint for Divorce, also called divorce papers. The complaint initiates the divorce by explaining who the parties are, verifying Clark County, Nevada is the proper court, asking for property, asking for support, and requesting other relief. The complaint is the paper declaring to the other person they are being sued. In all legal sense you are suing your spouse for a divorce.
Along with a complaint, most Clark County divorce papers consist of a summons, and joint preliminary injunction. The summons is the legal paper signed by the court noticing the defendant there are being sued and have 20 days to respond. The Joint Preliminary Injunction (JPI), explains you cannot incur community debts or dispose of community assets without the permission of the court.
Your spouse will only have 20 days from the date received to respond to the filed divorce papers. To ensure the papers were properly received, the court will not allow you to simply hand the documents to your spouse. Imagine how many people would say the papers were served when in fact, they weren’t. To keep everyone honest, the divorce papers need to be served according to Nevada Rules of Civil Procedure (NRCP).
NRCP 4 requires the divorce papers to be served by an independent person over the age of 18. Law firms hire process servers to handle this task. Process servers are people who serve court papers as a course of business. You may also use a constable, but they are more expensive and typically take longer. Normally, the process server will serve the divorce papers to your spouse’s last known legal residence, or in person to your spouse whenever possible.
The process server does not need to have anything signed. They simply need to leave copies of the papers at the residence with someone of suitable age. The process server then completes a form declaring they served the documents. This is all the court needs to consider service completed and to start the 20 day deadline.
In some cases, the spouse attempts to avoid service or is impossible to locate. Maybe you have been separated for several years and didn’t keep tabs on each other. In this situation, you need to ask the process server for their “due diligence”. This means they will make every attempt possible to serve your spouse. They will contact their job, talk with co-workers, talk with neighbors, call family members, run online searches, check with the department of motor vehicles, and even send emails or text messages.
With technology the courts are opening up to electronic service. Some business courts have approved of documents being served by email. In these rare situations the person being sued has shown to be readily available by email. The business courts are also seeing requests to serve via Twitter or Facebook. In the near future, both email and social media could be approved practices for serving papers in Family Court.
If the process server attempts all methods of service, and documents these steps then a divorce lawyer can ask the court for your spouse to be served by publication. We request this by filing a motion to serve by publication. In seeking permission, the judge will ask how we have attempted to locate your spouse. It is here that the process server’s documentation of due diligence comes in to play. If the court is convinced a real effort to serve papers was performed, they will grant permission to post the notice of intent to divorce. This is where an ad in a local newspaper is taken out.
You will need to run a notice of intent to divorce in a newspaper located in the city of the last known address of your spouse. In Las Vegas we use the Nevada Legal News. There is a typical newspaper in almost every metro city. You will need to run this notice for about a month. The newspaper will send you a notarized statement after the publication. This notarized statement is filed with the court to satisfy the service of papers. With this, the timer for your spouse to respond to the divorce papers will start.
Next, one of two things can happen. The first is your spouse responds by filing an answer. If this happens, then the standard divorce process unfolds. The second, is your spouse doesn’t respond within 20 days. If after the 20 days your spouse has not responded you may request the court to issue a “Default.” A Default means that the spouse does not object to the request for a divorce, nor do they object to the terms you have requested. A default divorce is not absolute victory, because your spouse has six months to ask the court to set-aside the default. But, a default is a strong position to be in. Setting aside a default is not always easy.