Divorces are lawsuits and, like any lawsuit, they must be effectively served on the opposing party before the court can rule on them. When a party to a divorce is located in another country, ensuring effective service an be difficult. Not only is there the problem of ensuring proper delivery, but there are also different legal procedures that apply depending on the country where the other spouse is.
File the petition and summons. You first have to file your divorce petition and summons before service can be effected. When you file these documents, the court clerk gives you a case number and dockets the case for the first hearing. You can then take copies of the filed petition and use those to serve the opposing party.
Determine your needs. If your divorce involves only issues that can be resolved in the United States, you may not need to ensure the other nation's service of process laws are met. However, if your divorce involves seeking property located in another country, your service must conform with that country's laws as well.
Find out where your spouse is. Knowing where your spouse is located is important. Not only do you need to be able to deliver the divorce papers to an address, but the laws of that nation may impact your divorce as well.
Research your state's "long arm" statutes. When you serve a lawsuit to someone in another state or nation, the laws that govern this process are generally referred to as "long arm" statutes. You must ensure the statutory requirements of your state are met before a court in your state can hear and rule on your case.
Consider which method of service to use. In general, there are several kinds of service of process procedures you can use when serving legal documents overseas: waiver of service, service by publication, personal service, service by registered or certified mail, service through a central authority and service through letters rogatory. Depending on the nature of your case and the country where your spouse is, you may be able to use any of these, or be limited to using a specific kind.
Get your spouse to waive service. By far the easiest and least complicated way to ensure service of process overseas is to get your spouse to sign an affidavit in which he or she waives service. Your spouse can get an affidavit notarised at the American embassy. Have your spouse call ahead and schedule an appointment when this can be done, and make sure he or she has a copy of the divorce papers as well as a waiver or service affidavit.
Contact a lawyer. Even if you don't hire a lawyer, you should at least talk to one. Service of process in another country can be technical and complicated, and you may not have requisite knowledge or experience to ensure your divorce is served properly.
Tips and warnings
- Contact a lawyer. Even if you don't hire a lawyer, you should at least talk to one. Service of process in another country can be technical and complicated, and you may not have requisite knowledge or experience to ensure your divorce is served properly.