The divorce process starts when one spouse files for divorce in the county clerk’s office. That spouse must then serve the summons and complaint on the other spouse within 120 days. If these rules regarding filing an action and serving divorce papers aren’t precisely followed, there are significant consequences.
Why Do You Need to Serve Your Spouse with Divorce Papers?
When you file for divorce, you are granting the court jurisdiction over you. However, the court only obtains jurisdiction over your spouse if he or she is properly notified of the divorce by virtue of receiving the summons and complaint from a non-party within the required time limit. Without jurisdiction, the court cannot decide the case and issue orders that affect your spouse.
What Happens If You Fail to Serve Divorce Papers within the Time Limit?
If you don’t serve the summons and complaint within 120 days, the divorce action is deemed abandoned unless you file a motion to extend the time to serve before the 120-day period expires. However, it is generally less expensive to abandon your case and begin again than to file a motion to extend it.
Importantly, you cannot seek a court order for spousal support unless you have first served your spouse with a summons and complaint. If you attempt to do so, your spouse can file a motion to have your motion dismissed on the grounds that the court lacks jurisdiction over him or her.
If this situation arises and you didn’t serve divorce papers on time and sought support, your spouse doesn’t have to seek dismissal of your action particularly if he or she believes it is likely that you would simply refile. Instead, you can see if your spouse may be amenable to waiving the jurisdictional problem in the interest of resolving your dispute more efficiently.
Is There a Reason to File for Divorce and Not Serve Your Spouse?
Most often, a party misses the deadline to serve papers inadvertently. However, sometimes there are strategic reasons to file for divorce but not serve your spouse. Typically, this happens if you want to preserve your income as it becomes your separate property once the divorce action is filed. With this said, keep in mind the 120-day deadline to serve papers to avoid dismissal of your divorce action.
If you are considering divorce, contact us today for a consultation to learn how we can assist you in achieving the best result in your divorce.
