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Ray
Ray, Lawyer
Category: Legal
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Experience:  30 years in civil, probate, real estate, elder law
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I'm getting divorced and my husband lives in south Africa

Customer Question

I'm getting divorced and my husband lives in south Africa and I have served him the papers by means of UPS with him signing for them.
I then found out about FRCP, Federal Rules of Civil Procedure, applying to serving of summons outside the USA in particular, Rule 4 requesting waiving service to avoid unnecessary expenses of serving the summons. My reason for asking this is that there appears to be different laws or procedures for issuing a summons to a person overseas. South Africa is not a signatory to the Hague Convention so does that mean the way I have issued the papers, through UPS and he has already received and signed for them is correct and acceptable in a court of law here in California?
If the above is not acceptable, can he be legally served in California during a short visit to see his family?
Thanks for your help Annette
Submitted: 1 year ago.
Category: Legal
Expert:  Ray replied 1 year ago.

Hi and welcome to JA. I am Ray and will be the expert helping you today.

Divorce here in California is filed in Superior Court and you need personal service while he is visiting.This would allow for your divorce to move forward in this situation.Federal Court rules do not apply here to a divorce.

I would suggest you spend the money for a private process server.They are more diligent and will work at odd hours and holidays to serve the person while they are here.

Personal service" means that someone – NOT a party to the case – must personally delivery the court documents to the other side.

In “personal service”:

  • The server gives the papers to the party being served. It can be at the party’s home, work, or anywhere on the street.

     

  • The server has to identify the party being served and hand the legal papers to him or her and inform him or her that they are court papers.
    • If the party being served does not want to take the papers, they can be left on the ground in front of him or her. If he or she takes the papers and tears them up or throws them away, service is still considered to be valid. The person being served does not have to sign anything.

     

  • The server then fills out a proof of service, detailing when, where, and how (in person) the papers were served. The server signs the proof of service and returns it to you to file in court.

     

  • Personal service is complete the day the papers are served.

You service by mail may be valid, if you complete the proof of service..

In "service by mail," someone – NOT a party to the case – must mail the documents to the other party.

For “service by mail”:

  • The server mails the papers to the party being served. If the party being served is a person, the papers can be mailed to his or her home or mailing address. If it is a business, the papers must be mailed to the owner(s) at the business’s main office. If the business has an agent for service, the papers should be mailed to the agent for service. Learn more about serving a business.

     

  • The server then fills out a Proof of Service, detailing to whom the papers were mailed, to what address, when, how (by first-class mail), and where they were mailed from. The server signs the Proof of Service and returns it to you to file in court.

     

  • Service by mail is complete 5 days after the papers are mailed.

Here is the proof of service you need to complete.

http://www.courts.ca.gov/documents/pos040.pdf

I would try to serve the person again using a private process server if they are going to be in California.Then there is no doubt and service cannot be challenged.

I appreciate the chance to help you today.Please let me know if you have more follow up.Thanks again.

Expert:  Ray replied 1 year ago.

You can locate a private process server here.

http://calspro.org/find-a-process-server/

Service is so critical it is important for you to make sure the person is served here so you can move forward with it.

Thanks again.Good luck with all.

Customer: replied 1 year ago.
Hi Ray,
1. When i filed the petition the court gave me FL-115 for the purpose of serving the summons.
2. Please confirm that my husband can be legally served in California during a short visit, even if he is not a US citizen.
Expert:  Ray replied 1 year ago.

Yes this is the correct form.Once you serve him, the court decides if they have jurisdiction over him--if he raises it as an issue.But you have then done what you need to try and proceed with your divorce here.

Thanks again for your patience and follow up.Good luck to you here with all.

Customer: replied 1 year ago.
Hi ray
Sorry for taking so long to get back to you, it's just difficult to get hold of my husband in South Africa because of the time difference. The problem is the serving of the papers to him, a south African citizen, living in south Africa. There appears to be different laws that apply in this situation. South Africa is not part of the Hague convention agreement and therefore it appears to me that I have to use some legal courier service that is accepted I both countries. I looked into this and that could cost almost $2000.00. That's expensive mail. Can you help me in this regard?
Expert:  Ray replied 1 year ago.

You can do it by mail if he agrees..

Service by mail with a Notice and Acknowledgment of Receipt
If you and your spouse or domestic partner are cooperating on your family law case, and your spouse or domestic partner agrees to accept service by mail, this can be an easy and less expensive way to serve the papers.

Someone 18 or older (NOT you) that is not involved in the case must mail copies of each of the forms you filed with the court, the blank forms listed above, and 2 copies of the Notice and Acknowledgment of Receipt (Family Law)

  • (Form FL-117). Click to find out more about service by Notice and Acknoledgment of Receipt.

    Form FL-117 shows the court that your spouse or domestic partner received your forms. If your spouse or domestic partner does not sign, date, and return this form, you will have to have him or her served again by personal service.
Expert:  Ray replied 1 year ago.

File the FL-117 signed by person who mailed the petition here.

Expert:  Ray replied 1 year ago.

That would save you the fees here.