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How to serve someone papers?

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bakersfield700

Junior Member
CALIFORNIA- This kind of ties into my last post about divorcing a Jamaican from California....How would you serve someone divorce papers in another country from the U.S.?
 


rmet4nzkx

Senior Member
bakersfield700 said:
CALIFORNIA- This kind of ties into my last post about divorcing a Jamaican from California....How would you serve someone divorce papers in another country from the U.S.?
I would suggest your fiancee consult an attorney in CA re her divorce options and how to best obtain a divorce, does she have any contact with her husband? Does she know where he lives? If there are no children and no property/debts there are different options. California is a community property state and he could, even though they haven't lived together for almost 2 years have some claim if she files in CA, so she may want to consult a divorce attorney in Jamaica as well. Here is a link to the state department with informaiton on both marriage and divorce for USC re foreign marriages/divorce. http://travel.state.gov/law/citizenship/citizenship_775.html
While it is true that in general the USA recognizes foreign marriages and divorces, there are additional steps for USC to in/validate these. While she may have married in Jamaica, it may be possible that her Jamaican marriage is not valid, or that it may be simplier to divorce in Jamacia without financial loss insofar as CA's comunity property laws. If there are children, well that is a different story. THese issues need to be addressed before the issue of serving him is a consideration.
 

IAAL

Junior Member
bakersfield700 said:
CALIFORNIA- This kind of ties into my last post about divorcing a Jamaican from California....How would you serve someone divorce papers in another country from the U.S.?

My response:

If you plan to serve someone living in another country, you need to determine (1) whether that country is a signatory to the Hague Convention; and (2) if it is, whether that country has registered objection to service by mail or through diplomatic channels. (If it has, you will have to go through whatever "Central Authority" it has designated.)

• To determine which countries have adopted the Convention, check the list of signatories. Great Britain, France, West Germany, Israel, Japan and the U.S. are among the original signatories.

To determine whether any other nations have subsequently adopted the Convention, contact the Department of State, Treaty Affairs Section, Washington, D.C.; Attn: Office of Legal Adviser.

• To determine whether a signatory country opposes service of process under Articles 8 and 10 (service by mail, etc.), you have to check the declarations and reservations of that country when it adopted the Convention. (These can also be found in "Treaties and Conventions" following Rule 4, at 28 USCA, vol. Rules 1-11.)

• If the country opposes service by mail or through diplomatic channels, you will have to invoke the aid of that country's "Central Authority." (The addresses of each country's "Central Authority" are attached to the Convention; see "Treaties and Conventions" following Rule 4, at 28 USCA, vol. Rules 1-11.)

You will need to send a "Request for Service Abroad" form, describing each document to be served. You can obtain this form from your local courthouse.

The United States is bound by the multilateral international convention governing "Service Abroad of Judicial and Extrajudicial Documents" (the Hague Service Convention, 20 UST 361-367). Therefore, the statutory rules for service of process upon a citizen of a country signatory to the Hague Convention are subject to the provisions of that treaty. [Ca Civ Pro § 413.10(c); see In re Alyssa F. (2003) 112 Cal.App.4th 846, 853, 6 Cal.Rptr.3d 1, 4--failure to serve foreign resident in accordance with Hague Service Convention renders proceedings void as to that person]

The rules for serving persons in foreign countries are expressly subject to the Hague Service Convention (20 U.S.T. 361-367). [Ca Civ Pro § 413.10(c), last sent.]

The Hague Service Convention is an international treaty governing service of process in countries that are parties to the treaty. Copies of the Convention and a list of the signatory countries are an "Appendix" to Rule 4 of the Federal Rules of Civil Procedure. [See "Treaties and Conventions" following Rule 4 in 28 USCA, vol. Rules 1-11]

California courts may not exercise jurisdiction in violation of an international treaty. [Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 699, 108 S.Ct. 2104, 2107-2108; Kott v. Sup.Ct. (Beachport Entertainment Corp.) (1996) 45 Cal.App.4th 1126, 1136, 53 Cal.Rptr.2d 215, 220 (citing text); Floveyor Int'l, Ltd. v. Sup.Ct. (Shick Tube-Veyor Corp.) (1997) 59 Cal.App.4th 789, 795, 69 Cal.Rptr.2d 457, 461]

The methods enumerated in Ca Civ Pro § 413.10(c) for serving defendants abroad all require transmission of documents abroad, and therefore are subject to the Hague Convention. [Kott v. Sup.Ct. (Beachport Entertainment Corp.), supra, 45 Cal.App.4th at 1136, 53 Cal.Rptr.2d at 220]

There is an exception--service by publication:
Service by publication under Ca Civ Pro § 415.50 (parties' whereabouts unknown) is the only method of service under California law that does not require transmission of documents abroad, and consequently is not subject to the Hague Convention. (Article 1 of the Hague Convention states that it does not apply where the address of the person to be served with the document is not known.) [Kott v. Sup.Ct. (Beachport Entertainment Corp.), supra, 45 Cal.App.4th at 1136, 53 Cal.Rptr.2d at 220; see People v. Mendocino County Assessor's Parcel No. 056-500-09 (1997) 58 Cal.App.4th 120, 125, 68 Cal.Rptr.2d 51, 53--Hague Convention not applicable to civil forfeiture proceedings where defendant's whereabouts were unknown]

IAAL
 

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