The first step in the divorce whether it be a contested or uncontested divorce, or in other family law cases is the filing of the petition with the Superior Court Clerk, who also completes the summons. These court documents must be served on the other party. This is what we call “service” or “service of process” and it is a critical step in the initiation of a lawsuit. Service is legal notice to the opposing party that papers have been filed in court which could affect that person’s rights and interests. If there were no requirement of service, or notice, then people would not have an opportunity to present their side and be heard. Service is so important that the court requires proof that it was properly accomplished. A “proof of service” must be filed with the court — proof by some evidence that the other party did indeed receive the court documents.
The Petitioner needs to understand, too, that the court papers must be delivered to the other party in the precise manner required by law. If the other party is not properly served, then the case will not go forward. In that case, there will be delays, the papers may have to be re-published or re-served, and of course, the costs will increase. If the case does go forward and it later becomes apparent that the other party was not served as required by law, then any orders from the court are invalid and unenforceable.
In Arizona, there are many ways to accomplish the service of the court papers on the other party. We’ll describe each method of service, one at a time.
What is Service by Acceptance?
You may give or mail the court papers to the other party along with a blank “Acceptance of Service” form. For service by acceptance to be complete, the other party must sign the Acceptance of Service form in the presence of a notary public or court clerk. He or she then must give the filing party the signed acceptance so it may be submitted to the court as proof of service. Needless to say, this method of service requires a certain level of cooperation between the parties. Whenever there is potential for domestic violence, service by acceptance should be avoided and another method of service used, such as a process server or sheriff.
What is Service by U.S. Mail or National Currier Service?
When the U.S. Postal Service is used to deliver the court papers to the other party, the other party must sign for them (no one else can sign instead) — this is mandatory delivery confirmation. If a commercial courier, such as UPS or FedEx, is used to deliver the court documents, then there still has to be signed confirmation of delivery. So long as there is a signed paper receipt or an electronic signature that can be submitted as proof of service by mail, the service is sufficient. Although optional, we recommend “Restricted Delivery” so only the other party can accept delivery of the court papers and sign a receipt. With family law cases specifically, this form of service is allowed for both in-state and out-of-state service within the U.S. The petitioner prepares an “Affidavit of Service with Signature Confirmation” and files it with the court as proof of service on the other party.
What is Service by Private Process Server?
Another option is to have a registered “private process server” go to the location of the other party and “hand over” the court documents. In addition to the summons and court papers, the process server needs the physical description of the other party, the vehicle he or she drives, and the addresses where he or she may be found. The private process server is not law enforcement, but is still an officer of the court who delivers the documents for a fee. Once the papers are delivered, the process server completes an “Affidavit of Service” and sends it to the Petitioner, who then files the affidavit with the court clerk. If the other party was served out-of-state, then an “Affidavit Supporting Out-of-State Service” is filed by the Petitioner following service.
What is Service by County Sheriff?
As with a private process server, the court documents are delivered to the other party by a deputy county sheriff assigned to that duty. The sheriff will also ask for a physical description of the other party (sex, race, birth, height, weight, eye color, hair color), and his or her social security number. There is also a fee associated with service by sheriff, but a fee waiver or fee deferral may be possible, depending on the financial circumstances of the Petitioner. Just as with a private process server, when the court papers are delivered to the other party by the deputy sheriff, he or she completes the “Affidavit of Service” as proof of time, place, and date of the service.
What is Service By Publication?
Service by publication is the least preferred form of service and is only used as a last resort. Remember that service is notice to the other party of the lawsuit affecting their legal rights and interests. Publishing a legal notice advertisement in a newspaper of general circulation is no guarantee of actual service. The legal notice of the case is published in the county where the case is filed. Notice must also be published in the county of the last known residence of the other person, if that is a different county. There are two possible results with service by publication: the other party reads the legal notice in the newspaper and responds to the suit, or there is silence from the other party, and we’ll never know if the notice was spotted or not. Consequently, the court has no confirmation, and no assurance, that the other party ever saw the newspaper, let alone the notice.
Nonetheless, sometimes publication is the only alternative, as when the other party’s location simply remains an unknown. For service by publication, every reasonable step has to be taken to locate the other party and deliver the court documents personally, and all of those attempts failed. Hiring a private investigator and talking to family and friends may be reasonable steps taken. Reasonable steps also include looking for information on the other party’s whereabouts in the:
- county jail or prison
- telephone directories
- post office forwarding information
- social media websites like Facebook, MySpace, LinkedIn, Spokeo, Friendster
- previously known addresses
After the legal notice has been published, the newspaper will send the Petitioner an “Affidavit of Service.” The newspaper’s affidavit and a copy of the actual published legal notice are attached to the Petitioner’s “Affidavit Supporting Publication,” and filed with the court as proof of service.
Service under Special Circumstances
When the State of Arizona is made a party to the family law case, as with child support and public benefits matters, then the Office of the Attorney General for Arizona (AG) is served with the court papers. With child support, the AG’s Division of Child Support Enforcement signs the Acceptance of Service which the Petitioner then files with the clerk of the court.
If the other party is incarcerated, then he or she may sign an Acceptance of Service. In the event an acceptance is not forthcoming, then the county sheriff will serve the court documents on the inmate.
What are you waiting for?
Once service has been completed, and the proof of service has been filed with the court, the Petitioner waits and counts the days. If the other party has defaulted by not responding to the petition within 20 days of service (30 days if served out-of-state), then the Petitioner may apply for a default judgment from the court.
Here are the Arizona Rules of Family Law Procedure (ARFLP) on service:
- Rule 40: Process
- Rule 41: Service of Process within Arizona
- Rule 42: Service of Process Outside of State
- Rule 43: Service and Filing of Pleadings and Other Papers; Sensitive Data Form
For service of court documents outside the U.S., contact the Office of International Judicial Assistance:
Office of International Judicial Assistance, Civil Division, Department of Justice
1100 L St., N.W., Room 11006, Washington, D.C. 20530
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