In California divorces, the petitioner (the spouse that initiates the divorce) is required to serve the respondent with a copy of the Petition and a Summons to appear in court. The Summons provides notice to the respondent that the petitioner has filed for divorce and informs them that he/she has 30 calendar days to file a response to the petition. Serving divorce papers in California is not an easy task. If done incorrectly, the case will not progress and the petitioner will be required to re-submit his/her paperwork to the court. The respondent can challenge the court’s authority over the divorce by filing a motion to quash service. A motion to quash service in divorce contests the validity of the service of process. The party who files a motion to quash in divorce is claiming that there is some type of legal defect with the service. Without proper service, a court has no authority (jurisdiction) to hear a divorce case. Read on to learn more about how to file a motion to quash service in divorce.
Types of Personal Service for Legal Documents
1. Personal Service
Personal service is performed when the process server delivers the divorce papers to the respondent. This can occur at the respondent’s home, workplace, or in a public area.
Once service is completed, the process server signs and files the proof of service with the court.
2. Service by Mail
Service by mail occurs when the process server mails the papers referenced above to the respondent’s home, mailing address or business. The respondent signs paperwork acknowledging receipt of the paperwork. Proof of service must be filed with the court upon completion.
3. Substituted Service
Once a server makes more than three or more unsuccessful attempts to serve divorce papers, he/she can deliver the documents to another person residing with the recipient (ex – roommate) or the respondent’s office. Proof of service must be filed with the court upon completion.
3. Service by Publication
Serving the respondent by publication requires one to exhaust all possibilities of locating the other party for an address where they can be personally served. If the whereabouts of the other party cannot be discovered, application can be made to the court showing what efforts were made to find the party and to ask that service be completed by publishing notice in a legal newspaper.
Service personally is the best method to validate process service. This reduces any errors from arising and the respondent’s chances of prevailing on a motion to quash request. Unfortunately, if the process server is inexperienced and does not follow the correct procedures, the respondent will have grounds to file a motion to quash service in divorce for lack of jurisdiction.
Overview of Motion to Quash Service in Divorce
The motion to quash service in divorce prevents the court from making any order against the respondent. It does not place into issue the merits of the petitioner’s request for divorce, but whether the court has jurisdiction over the alleged respondent. Personal jurisdiction allows the court to make orders against a party.
A motion to quash service in divorce must be filed within 30 calendar days from the alleged date of service. The motion to quash must be filed with the court before a response is filed. The motion to quash is considered a special appearance. This means the moving party can attend court to argue the motion without admitting the court has jurisdiction over the divorce. If the motion to quash is not timely filed and served, the respondent waives his/her rights to challenge the court’s jurisdiction. When a motion to quash service in divorce is filed, the burden of proof shifts to the petitioner. The petitioner must prove the service of process was properly performed.
If you believe the court lacks personal jurisdiction over you, contact A People’s Choice for help in preparing the motion to quash service in divorce.
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