There are several lawful ways to serve a defendant spouse in a Pennsylvania divorce action; however, in a low-cost, simple, uncontested, no-fault Pennsylvania divorce, some of those methods do NOT apply. Accordingly, I will first discuss the process for the types of cases I handle. If the parties to the action – you and your spouse – have been separated less than one year, after the divorce is prepared, signed and filed in Court, the law requires a ninety-day waiting period (waiting period, not a separation period, so it can be spent together, the whole time or part of it). The waiting period begins when your spouse receives a copy of what was filed in Court. Inasmuch as I handle cases only wherein both parties are and remain available and cooperative, I expect my clients to be able to get that document to their spouses and have it signed. In essence, it states that the defendant spouse received the copy of the filed divorce. That begins the ninety day wait. If you have been apart for over one year, for the low-cost process, serving your spouse must still be by means of your spouse’s signature on the correct document.
If you do NOT have a simple, uncontested divorce and the defendant spouse will not sign that document, there are alternative means of serving the document and beginning the waiting period whether or not your spouse likes it. One is Restricted Delivery Certified Mail, but it only works if and when the defendant – and no one else – signs the green certified receipt card. The authorities who wrote the rule allowing a divorce to be served that way thought that the letter carrier would permit only the defendant – no one else – to sign the card. They were mistaken. The USPS procedure allows anyone who answers the door and says they are authorized to sign for the defendant to sign the green card. If that happens, because the card was not signed by the defendant, the waiting period has not begun. Moreover, many people are not home when their letter carriers arrive. The carrier will make three attempts at the signature over a two week period during which length of time the defendant can answer the door and sign or go to the post office and sign. Frequently, neither happens. Because of that, I advise against the use of Restricted Delivery Certified Mail to serve divorce documents.
The final alternative to the defendant signing the document or signing the green mail receipt card is known as “personal service” which is the defendant being handed the document by a person permitted to do so under our legal divorce procedure. Who might that be? Most lawyers, conservative in their practice of law, will use either a Sheriff’s Deputy or a duly sworn Pennsylvania Constable. Both choices require payment and necessarily inflate your fees; however, our law clearly authorizes any adult (a person eighteen years of age or older) who is not related to either party and not an employee of either party, to be able to serve divorce process. (By the way, that obviously means that one spouse cannot serve the other, of course.)
Okay, so by one of those means, the defendant spouse gets served in a no-fault divorce action wherein the parties have been separated less than one year and the ninety day waiting period has begun. What happens when it is over? Both parties, the plaintiff who filed the divorce and the defendant who refused to sign anything to begin the ninety day wait, must then sign an Affidavit consenting to the divorce. And that does not have to happen right away, just any time after the ninety days are over, but if the defendant would not sign to begin the ninety days, it may take some time to convince the defendant to consent in writing after the ninety days. However, it can make sense to begin the waiting period in cases wherein it is known that the defendant will refuse to sign later as something may change in the defendant’s life – a new love interest, for example – that will change the defendant’s mind about signing and when that happens, it is better to have the ninety days in the past instead of the future.
What if the parties have been apart over one year and the defendant still does not agree to the divorce? Well, it is certainly NOT automatic as many people have come to believe (due mainly to typically inaccurate news media reporting or even more inaccurate internet information provided by someone other than an experienced Pennsylvania divorce attorney). The process would be to have the defendant personally served as described above (no signature required) and take steps to begin the required 21 day waiting period. What steps? After the defendant is properly served and the person who served the defendant provides legally-approved document proving all of the details of the act of serving the defendant, the defendant must be sent, by ordinary mail, two documents, one called an Important Notice (which tells the defendant there are 20 days in which to file a contest) and a Counteraffidavit (in layman’s terms, an affidavit against the divorce) which, in essence, allows the defendant to check off that the marriage is not irretrievably broken and/or that the separation is less than one year and/or that the defendant claims money and/or realty and/or personal property. If that is sent to the Court, the action is officially contested and a hearing must be scheduled (at tremendous expense) in which the plaintiff will seek to have the defendant’s claims dismissed (thrown out of Court).
As I said at the beginning, if one must go to one of these extraordinary procedures just to serve the defendant, one does not have a low-cost, simple, uncontested, Pennsylvania no-fault divorce wherein both parties are in complete agreement and want to end their marriage simply, inexpensively and with an absolute minimum of stress and confrontation. To serve the defendant in that type of case merely requires the defendant’s signature on the correct document, whether or not the parties have been separated one year or even not at all.