The plaintiff (party initiating the divorce action) serves papers on the defendant (the other party). State laws, including court rules of procedure, govern service of papers. It is easier to serve papers on a spouse physically present in the state of domicile than on a spouse who is serving overseas. Because state laws differ on these procedures, it is important for you to seek legal advice. If you retain an attorney, he or she will usually arrange for the service of papers.
Chapter 3: Support and Jurisdictional Consideration
There are various methods of serving legal papers, some of which are listed below. Again, it is important that you seek competent legal advice on issues regarding proper service. Otherwise, service could be invalid and you may be wasting your time and money.
Two Important Points:
1) Foreign Service employees should not use an overseas assignment to avoid service of process (22CFR 172.2(d). Such behavior reflects adversely on the U.S. Government. Post management, preferably the Deputy Chief of Mission, should counsel and encourage employees to accept service of process. The Department of State may waive any relevant immunity of employees who refuse this service of process if it is determined to be in the best interests of the U.S. Government. If the individual continues to evade legitimate attempts at service, it may result in the employee’s curtailment from post and/or possible disciplinary action.
2) Department of State regulations (22 CFR 92.85) prohibit Foreign Service officers from serving process or legal papers or appointing others to do so except when directed by the Department of State.
Methods of Serving Papers:
1) If the state permits the service of papers by registered mail (a) a registered letter may be sent to a post with an APO/FPO address; or if not (b) the papers may be sent via international registered mail.
2) If the country is party to the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters, papers can be served by the central authority which is generally the Ministry of Justice. The Bureau of Consular Affairs, Office of American Citizen Services, can tell you which countries have signed the Hague Convention and how to transmit a request to the foreign central authority for this service.
3) The Inter-American Convention on Letters Rogatory and Additional Protocol is another multilateral treaty on service of documents in force in many countries. Check the Consular home page at http://travel.state.gov, under Judicial Assistance, for up-to-date information.
4) In countries not covered by the Hague Convention, it is possible to hire a local attorney or an attorney’s agent to serve the documents. (See Chapter 4, “Legal Assistance,” on “Choosing a Lawyer,” and CA’s information brochure, “Retaining a Foreign Attorney,” here.
5) Letters rogatory can also serve as formal requests for service of process in countries that prohibit service of foreign court papers. A letter rogatory is a request from a U.S. court to a court in a foreign country requesting international judicial assistance. This often takes a great deal of time and may not be practical. It is not possible if the defendant has diplomatic immunity. The Bureau of Consular Affairs has information on the preparation of these letters here.