Divorce is hard, stressful, costly, and emotionally draining.
But in most divorce and family law cases, service of process is (thankfully) one of the easier parts. By service of process, I mean serving your spouse copies of the divorce summons and petition.
If you and your soon-to-be ex-spouse are on (relatively) good terms, he or she may just agree to accept service by email. Type up an email, attach the documents, click send, and done. At most, you may have to hire a process server to hand-deliver the documents to your spouse at home or at work, but this normally costs less than $100.
Of course, sometimes getting your spouse served isn't easy, especially if your spouse hides out at home and won't answer the door. But, comparatively speaking, service of process is a lot easier than figuring our child support, battling over custody of the children, or diving up your property—the big-ticket items in any divorce or legal separation.
But international service of process is hard. Sometimes, it's very hard. But unlike regular, domestic service, it's rarely easy. That's because, to understand international service of process, you have to understand Washington State law, federal law, the Hague Service Convention (an international treaty) and the law in the foreign nation where service of process is taking place.
How do we know this? Consider the fact that a lawyer based in Missouri devotes nearly his entire legal practice to international service of process. And his clients aren't the parties getting divorced – they're the lawyers.
Yes, you read that right? Experienced divorce lawyers hire a more experienced lawyer to help them figure out international service of process.
By no means will you be an expert in international service of process after reading this article. (That lawyer in Missouri has been blogging about the intricacies of this area of the law for the past 7 years).
You won't even be proficient, and you probably won't feel comfortable doing it yourself (which I don't recommend, anyway).
But hopefully, you'll learn enough of the basics to feel a little more comfortable when you're talking with an attorney. Or, if you're an attorney, you'll feel a little more confident when talking to your client, even if you end up hiring another attorney to help you with the process.
What is International service of process?
In theory, international service of process is easy to explain. It means you are serving process (i.e. the actual divorce documents) outside of the United States. That's it.
Most of the time, of course, you will be serving your spouse outside the United States because your spouse resides in a foreign county. But residency is not the determining factor. Where your spouse is served is what matters.
Example #1: You and your spouse have separated. You live in Kirkland. Your spouse lives in South Korea, but she is staying with her parents in Mercer Island over the Christmas holiday. You hire a process server to serve your spouse at her parents' home.
This is not international service of process. You do not have to worry about Korean law or the Hague Service Convention (more on that below).
Example #2: You and your spouse live in Bellingham. Over the weekend, you visit friends in Toronto. Your spouse hires a process server to serve you divorce papers at your friend's home.
International service rules apply. For service to have proper, your spouse must have complied with Canadian law and international law.
In short, WHERE service occurs matters, NOT where you or your spouse actually live.
What is the Hague Service Convention?
To understand international service of process, you must understand the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters. No one uses this long name, though. Lawyers and judges call it simply the Hague Service Convention.
The Hague Service Convention is an international treaty that sets forth the procedures for international service of process among its member countries.
Does the Hague Service Convention apply to family law cases?
As the full name suggests, the Hague Service Convention applies to civil cases. These include not just divorce cases, but also any related family law actions such as child custody, child support, modification, child relocation, and protection order cases.
Is the United States a member of the Hague Convention?
Yes.
The United States is a signatory to the Hague Convention. That means the Hague Conventions is binding on all federal and state courts.
Under the U.S. Constitution, international treaties trump inconsistent state or federal service of process rules. This means, as we'll see later, why the Hague Service Convention prevails over Washington state law when the two are in conflict.
Which countries have adopted the Hague Service Convention?
At this time, 82 countries, including the United States, have adopted this treaty. These include some of the world's largest countries (like China and India) and major U.S. allies (like Germany and the United Kingdom) are members.
Here is a non-exhaustive list of major member countries:
- Australia
- Belgium
- Canada
- China
- Egypt
- France
- Germany
- India
- Israel
- Italy
- Japan
- Kuwait
- Mexico
- Philippines
- Poland
- Russia
- Singapore
- South Korea
- Spain
- Vietnam
How does service of process work under the Hague Service Convention?
This is the million-dollar question, of course. How does this stuff actually work?
In general terms, you have four (4) possible ways to serve your spouse internationally under the Hague Service Convention:
- Article 5 Service (Central Authority)
Each member country must designate a “Central Authority” to receive written service of process requests from other member countries. After receiving your request, the central authority will serve your spouse, or arrange for a third-party (such as a process server or a judicial officer) to serve process.
- Article 10(a) Service (Service by Mail)
You can serve your spouse by mail in the same way that you could serve your spouse by mail in the United States. However, you cannot serve by mail if the receiving state (i.e. the country where service is to take place) objects to Article 10(a) service.
And, unfortunately, lots of countries object to service by mail, including Germany, Korea, and Mexico.
- Article 10(b) Service (Judicial Officers / Competent Persons)
This means you personally hire a process server or judicial officer in the foreign country where your spouse is residing (or vacationing) and get the documents served.
Sounds like the easiest method, right? You'd be correct, but a lot of countries (see above) don't allow any form of Article 10 service.
There's more to service process – a lot more, in fact. But a lot of it isn't relevant to anyone filing for divorce in the United States. Article 8 of the Hague Service Convention, for example, allows diplomatic or consular officials to serve process, but a U.S. Department of State regulation prohibits foreign service officers from doing this unless specifically directed, and this is very rare.
Do I have to comply with the Hague Service Convention?
Yes.
If the country in which your spouse is residing (or vacationing, or visiting) is a Hague member, then you must comply. The Hague Service Convention is the “exclusive means” of valid service of process. This language comes straight out of a U.S. Supreme Court opinion.
Ignore the Hague Service Convention at your peril.
How do you file your service request with a country's Central Authority?
First, you have to complete the USM-94 form, more colloquially known as the Hague Service Request. To fill it out completely and accurately, you'll need the following:
- Your attorney's full name, address, email, and telephone number
- Each spouse's name
- The service address for your spouse
- A list of all documents to be served (summons, dissolution petition, etc.)
- The Court name and address
Second, you have to get all the documents translated into country's own language, even if your spouse speaks and understands English fluently. This includes any exhibits, including text messages, emails, and social media printouts.
Third, after receiving Hague Service Form and accompanying documents, the Central Authority will send the service packet to a local official or judicial officer, who will actually serve the documents.
Fourth, you will receive a Hague Certificate (basically a proof of service document), which you will then file with the divorce court.
How long does Article 5 (Central Authority) service take?
Long.
Sometimes, the entire process can take over a year, and there's really nothing you can do to expedite the process.
How do I serve divorce papers when the other country is not part of the Hague Service Convention?
As noted above, the majority of countries have not adopted the Hague Service Convention. They include:
- Algeria
- Honduras
- Indonesia
- Iran
- Iraq
- Laos
- Panama
- Saudi Arabia
- Thailand
- Uruguay
Does this mean you're out of luck? Not at all. Because you don't have to worry about federal law, you just need to focus on Washington state law, which is found in the Washington Superior Court's civil rules—CR 4(i) to be exact.
CR 4(i) authorizes service in a foreign country if one of the following conditions applies:
- The method of service complies with any international treaty (i.e. the Hague Service Convention)
- Service is permissible under the country's domestic law
- Personal service
- Service by mail, so long as the serving party gets a “signed receipt”
- Any other Court-directed order, so long as the person making service under this order is 21 years or order and is not a party to the case
Regardless of which method is used, service of process in a foreign country must be “reasonably calculated” to give the spouse “actual notice” of the divorce case.
What does this mean? This means, assuming you know where your spouse is located, you can do personal service exactly as you would in Washington. You can also use service by mail, again assuming you can get a signed receipt.
Of course, the easiest method by far is electronic service. You might be thinking, “How is email authorized, because it's not listed under CR(4)(i)?”
But, as CR 4(i)(A)(G) makes clear, any method of service “as directed by the order of the court” that is “reasonably calculated” to “give actual notice” to your spouse is good enough. And in 2023, what could possibly be more reasonably calculated to give actual notice to someone than an email?
Can I serve divorce documents by email under the Hague Service Convention?
As you may have discovered by this point, international service of process is not an easy process. Obviously, if you could serve your spouse via email, you would save yourself a lot of time and money (and you could have stopped scrolling through this article a while ago).
The question of whether electronic service is authorized under the Hague Service Convention has divided courts in recent years. Obviously, in 1965, when the Convention came into effect, there was no email, so nothing in language in the treaty provides any clear guidance.
If you're expecting to find a definitive answer in this article, I can give away the surprise now: You won't.
Here's what I can say: In most cases it seems more likely than not email service is not allowed under the Hague Service Convention (although you can certainly argue that it is allowed, and you might get a court to agree with you). But there might be a big exception.
Here's why: As we read earlier, the Hague Service Convention provides the only method of service between member nations. And since email is obviously not a prescribed method, we will need to make electronic service fit in one of the prescribed methods.
If you're thinking that Article 10(a) service by mail seems like a good contender, you'd be right. Technically, Article 10(a) doesn't say service by mail. It actually says, “by postal channels.” Clearly, mail through the U.S. Post Office is going to qualify, and any other standard mail courier like UPS and FedEx will also work.
But what about email? A recent well-written law review article has analyzed this issue and determined that email can't really be considered a “postal channel,” mainly because postal service refers to the delivery of an actual letter or printed document, and email doesn't really fit into that category. (This is a very simplistic analysis, so feel free to check out the full article here).
And, of course, even if could argue that email service falls within Article 10(a) service, a lot of countries do not allow Article 10(a) service in any event.
Now we get to the big exception. The Hague Service Convention applies only when address of the other party to be served is “known.” If you cannot locate your spouse—assuming, of course, you have made a diligent search to find him or her—you can argue that the treaty does not apply, and therefore move for court-directed service under CR 4(i)((a)(G).
What happens if I can't serve divorce papers on my spouse?
Service of process is essential to starting and completing the divorce case.
Without service of process, the court cannot exercise personal jurisdiction over your spouse. And if the court cannot exercise personal jurisdiction over you spouse, then the court cannot make any orders relating to child support or property division. More fundamentally, the court can't dissolve the marriage.
In other words, you cannot divorce your spouse if you can't serve your spouse.
Can my spouse waive service under The Hague Service Convention?
Yes.
Any party to a litigation can waive service. Legally speaking, "waiving service" means you agree to accept service of the divorce papers without forcing your spouse to comply with the technical requirements of the treaty.
For example, you are living in England but you agree to accept the divorce papers via email, even though The Hague Service Convention requires Article 5 or 10 service.
If your spouse agrees to waive, get it in writing, and file proof with the Court.
