You’ve decided to file for divorce, now what? When filing for divorce, you must follow established procedures. One essential step in the process is serving your spouse with the documents. So, how do you serve your spouse divorce papers in Louisiana?
Lousiana law allows 1. Service by the Sheriff’s office 2. Service by a qualified person 3. Waiver of Service, 4. Appointment of a curator or 5. By certified mail, in particular, circumstances
Soon after you file for divorce, you should serve your spouse with the divorce papers. Louisiana law establishes various ways to serve your spouse and also provides a method to proceed with a divorce in cases when a spouse can’t be located.
Service of Process
Delivering the petition of divorce to your spouse is “service of process.” Personal service is achieved by serving the documents in hand to the named defendant (spouse) in the divorce proceedings. Personal service is required in most instances, but there are exceptions, which we will address.
Louisiana law regarding service of process for a petition for divorce can be found in the Louisiana Code of Civil Procedure. The relevant section follows:
Service of citation or other process may be either personal or domiciliary, and except as otherwise provided by law, each has the same effect.
Service, whether personal or domiciliary, may be made at any time of day or night, including Sundays and holidays.
Personal service is made when a proper officer tenders the citation or other process to the person to be served.
§3204. Service of process
A. In a suit under R.S. 13:3201, a certified copy of the citation or the notice in a divorce under Civil Code Article 102 and of the petition or a certified copy of a contradictory motion, rule to show cause, or other pleading filed by the plaintiff in a summary proceeding under Code of Civil Procedure Article 2592 shall be sent by counsel for the plaintiff, or by the plaintiff if not represented by counsel, to the defendant by registered or certified mail, or actually delivered to the defendant by commercial courier, when the person to be served is located outside of this state or by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to serve the process of any of its courts of general, limited, or small claims jurisdiction.
B. If service of process cannot be made on the nonresident by registered or certified mail or by actual delivery, the court shall order that service of process be made on an attorney at law appointed to represent the defendant pursuant to Code of Civil Procedure Article 5091.
C. Service of process so made has the same legal force and validity as personal service on the defendant in this state.
D. For purposes of this Section, a “commercial courier” is any foreign or domestic business entity having as its primary purpose the delivery of letters and parcels of any type, and which:
As you can read there are numerous ways to effectuate service. Let’s look at the different ways a spouse can be served with divorce papers.
Personal Service by the Sheriff’s Department
“Personal service” of divorce papers by the Sheriff’s office is the most commonly used method. When you initially file your divorce papers at the courthouse, request your spouse be served by the Sheriff with a copy of your filings
The parish charges a fee for providing this service. This method is the easiest because they have the staff and will file confirmation with the court to confirm they have successfully given your documents to your spouse.
Louisiana statute authorizing service by the sheriff is Art. 1291. Service by sheriff and states as follows:
“Except as otherwise provided by law, service shall be made by the sheriff of the parish where service is to be made or of the parish where the action is pending.”
You can click on this link 21st JDC to check the prices charged for the Sheriff’s office to serve your documents.
Personal Service by Private Adult
In order to have a private party qualified to serve your documents, he must be approved by the court. You will have to file a “Motion to Appoint a Private Process Server.” In your motion, the named individual must meet the following criteria:
- A person must be over the age of majority;
- Not a party in the litigation;
- Resides in the state;
- The court deems qualified to perform the duties required.
The Louisiana statute authorizing service by a private person is Art. 1293 and states as follows:
Art. 1293. Service by private person
A. When the sheriff has not made service within ten days after receipt of the process or when a return has been made certifying that the sheriff has been unable to make service, whichever is earlier, on motion of a party the court shall appoint a person over the age of majority, not a party and residing within the state whom the court deems qualified to perform the duties required, to make service of process in the same manner as is required of sheriffs. Service of process made in this manner shall be proved like any other fact in the case. Any person who is a Louisiana licensed private investigator shall be presumed qualified to perform the duties required to make service.
B. In serving notice of a summary proceeding as provided by Article 2592 or a subpoena which is related to the proceeding, on motion of a party the court shall have the discretion to appoint any person over the age of majority, not a party and residing within the state, to make service of process, notices, and subpoenas in the same manner as is required of sheriffs, without first requiring the sheriff to attempt service. The party making such a motion shall include the reasons, verified by affidavit, necessary to forego service by the sheriff, which shall include but not be limited to the urgent emergency nature of the hearing, knowledge of the present whereabouts of the person to be served, as well as any other good cause shown.
C. In addition to those natural persons who the court may appoint to make service of process pursuant to Paragraph A or B of this Article, the court may also appoint a juridical person which may then select an employee or agent of that juridical person to make service of process, provided the employee or agent perfecting service of process is a natural person who qualifies as an agent for service of process pursuant to Paragraph A or B of this Article.
D. In addition to the provisions of Paragraph A of this Article, when the citation or other process is a temporary restraining order, protective order, preliminary injunction, permanent injunction, or court-approved consent agreement as referenced in R.S. 46:2136.2(B), the person making the service, or his designee, shall transmit proof of service to the judicial administrator’s office, Louisiana Supreme Court, for entry into the Louisiana Protective Order Registry, as provided in R.S. 46:2136.2(A), by facsimile transmission or direct electronic input as expeditiously as possible, but no later than the end of the next business day after making service, exclusive of weekends and holidays. This proof shall include, at a minimum, the case caption, docket number, type of order, serving agency and officer, and the date and time service was made.
Waiver of Service
If you and your spouse are in agreement and plan to work together on the divorce, your spouse can agree to accept the divorce petition and summons. Cooperation is a much better option than having to spend money on for a sheriff’s deputy or private process server to track down your spouse tho serve him.
Ideally, your spouse will agree to waive the service of your divorce papers. If they decide to forgo formal service, they must accept the documents from you and sign a waiver of service and citation.
Once you have the signed waiver it must be filed with the court in place of the return service document. You can find an example of a waiver document here. The statute addressing the waiver of service is Art. 1201 the text of the law follows:
Art. 1201. Citation; waiver; delay for service
A. Citation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children’s Code. Without them all proceedings are absolutely null.
B. The defendant may expressly waive citation and service thereof by any written waiver made part of the record.
C. Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver. The requirement provided by this Paragraph shall be expressly waived by a defendant unless the defendant files, in accordance with the provisions of Article 928, a declinatory exception of insufficiency of service of process specifically alleging the failure to timely request service of citation.
D. If not waived, a request for service of citation upon the defendant shall be considered timely if requested on the defendant within the time period provided by this Article, notwithstanding insufficient or erroneous service.
When You Can’t Find Your Spouse
If you have exhausted the sheriff department and a private process server and are still unable to locate your spouse to serve your divorce papers, you can seek to have a person appointed as his curator.
When a curator is appointed, you must provide him with all the information you have that could lead to your spouses’ whereabouts. The curator will then take steps to locate the missing spouse.
If, after due diligence, the curator is unsuccessful in locating your spouse, he can send certified mail to his last known address and put a notice in a local newspaper. After taking these steps, the curator can testify to the court about the steps he took to locate the spouse.
Louisiana Service on a Non-resident
Louisiana allows service on a non-resident in certain circumstances. Louisiana Revised Statute RS 13:3201 states the following:
§3201. Personal jurisdiction over nonresidents
A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(1) Transacting any business in this state.
(2) Contracting to supply services or things in this state.
(3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
(4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
(5) Having an interest in, using or possessing a real right on immovable property in this state.
(6) Non-support of a child, parent, or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state.
(7) Parentage and support of a child who was conceived by the nonresident while he resided in or was in this state.
(8) Manufacturing of a product or component thereof which caused damage or injury in this state, if at the time of placing the product into the stream of commerce, the manufacturer could have foreseen, realized, expected, or anticipated that the product may eventually be found in this state by reason of its nature and the manufacturer’s marketing practices.
B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.
If you have served your spouse under the rules of Revised Statute §3201 you need to file an affidavit with the court. A form affidavit can be accessed by clicking here.
Divorce is an emotional drain, especially when trying to navigate the court system by yourself. If you need help with your divorce, contact our office. We have the compassion and experience you need.