Citation and service of the divorce petition and ancillary matters as well as service in general can be frustrating in family law actions. Self-represented litigants often struggle with Louisiana rules for service of process. There exist some avenues of assistance, although they are limited. For example, the local volunteer lawyer program may offer advice clinics or assist pro se litigants. Moreover, knowledgeable staff in the local clerk’s office may be able to assist. A litigant cannot obtain a default divorce or have a hearing on a rule for custody, support, etc., unless the adverse party has been properly noticed by service of the pleadings. Every time a rule is continued for lack of service, the court costs increase. This is just one more reason to check the court record prior to going to court.

You should check that the clerk has allowed sufficient time for the setting of any rule dates. For example, service on prisoners1 and non-residents2 can easily take 45 days or more to complete. A hearing (other than on a protective order) cannot be heard unless there is at least 30- day notice to a non-resident. If you need to subpoena third-party witnesses for the rule hearing, be aware that some judges will not enforce a subpoena unless it has been issued 30 days before the hearing.

Service of the citation must be requested on all named defendants within 90 days of commencement of the action.3 Failure to do so may result in an involuntary dismissal “unless good cause is shown why service could not be requested.”4

Citation and service of the divorce petition are made as described in the following sections. Similar rules apply for service of other pleadings. Refer to La. C.C.P. arts. 1312–1313 for the manner of service of pleadings filed after the original pleading.5

• 1La. C.C.P. art. 1235.1; on serving incarcerated individuals, see Section 3.9.1.
• 2On serving absent persons, see Section 3.9.2.
• 3La. C.C.P. art. 1201(C).
• 4La. C.C.P. art. 1672(C).
• 5For instance, La. C.C.P. art. 1313 allows pleadings subsequent to the petition to be served by mail, delivery, or electronic means “except as otherwise provided by law.” The revision comments to Article 1313 describe some of these exceptions.

Citation is not required for Article 102 divorces and summary proceedings.1 A defendant may expressly waive citation and service by written waiver.2 Citation and service of the petition are required for Article 103 divorces.3 For a 103(1) divorce, the waiver must be by affidavit signed and filed after the petition is filed.4 The defendant must receive a certified copy of the petition.5 Check local court rules for any requirements for waivers of citation and service. If the matter is truly uncontested, you may be able to get around other time-consuming and costly methods of service, e.g., service of inmates and non-residents, and simply, obtain a written waiver from the adverse party. Some, if not most, prisons have in-house notaries who will notarize legal documents for its inmates. Call the prison and ask if they have a person on staff who notarizes legal documents. There is minimal cost, if any, to the prisoner, and it can expedite matters. 

• 1La. C.C.P. arts. 1201, 3955.
• 2La. C.C.P. arts. 3955(C), 3957.
• 3La. C.C.P. art. 1201.
• 4An affidavit is required because it is an out-of-court statement by the defendant waiving service. It must be filed after the petition is filed because the waiver cannot be executed until the defendant has received a certified copy of the petition. This ensures that the defendant is fully informed prior to executing the waiver.
• 5La. C.C.P. art 1202.

Service on persons may be personal or domiciliary.1 Personal service is most often made at home (particularly in Article 102 divorce proceedings where the parties are still living together) or work. Domiciliary service requires service on a person of suitable age and discretion who resides in the adverse party’s house.2 Domiciliary service at a defendant’s former home, at a relative’s home, or on someone who does not live in his home will be insufficient service. 

• 1La. C.C.P. art. 1231.
• 2La. C.C.P. art. 1234.

If you know the address of an out-of-state divorce defendant, you must try to serve the defendant by certified mail under the Long-Arm Statute1 or by a method approved by the law of the non-resident’s state. 

A certified copy of the citation and petition in an Article 103 divorce or the notice, petition, and rule to show cause in an Article 102 divorce are sent by certified mail or commercial courier to the out-of-state defendant. Delivery of process by an authorized commercial courier may be a surer method of serving the defendant. A defendant’s failure to pick up certified mail delivered to the defendant’s current address does not defeat service. Service on an out-of-state defendant will eliminate the need to have an attorney appointed to represent the defendant per La. C.C.P. art. 5091, et seq.2

A private process server may also be used to effect long-arm service if appointed by the Louisiana court. However, use of a private process server for an out-of-state service may be impractical for two reasons: (1) the court can only appoint Louisiana residents, and (2) the process server’s oral testimony may be required if there is a challenge to the service. 

Except for matters filed under La. R.S. 46:2131, et seq., no contradictory motions and no default judgments, rules to show cause, or other summary proceedings may be had until 30 days after the affidavit of service is filed with the court as required by our Long-Arm Statute.3 The Affidavit of Service must be executed by the person who either (1) mailed the process to the defendant, including the return receipt signed by the defendant, or (2) executed by the person who actually delivered the pleadings/documents to the defendant reflecting the date, place, and manner of delivery. Remember that the 30-day delay for taking a default judgment does not begin to run until counsel files the Affidavit of Service into the record. 

The Affidavit of Long-Arm Service should strictly comply with La. R.S. 13:3205(1)–(3). The person who actually mailed the citation and petition must execute the Affidavit. If your administrative assistant mailed the process, the assistant must execute the Affidavit. Make sure that the Affidavit expressly states that a certified copy was mailed or delivered and contains all the information required by the particular subsection of La. R.S. 13:3205 under which service was effected. An Affidavit that merely states that the citation and petition were mailed is insufficient because it does not say that a certified copy was mailed.

• 1See La. R.S. 13:3201–3207.
• 2For additional discussion, see Section 3.9.2.
• 3La. R.S. 13:3205.

On motion, the court must appoint a private process server when the sheriff does not make service within 10 days or is unable to make service. Proof of service may require oral testimony by the process server and/or an affidavit of service that states the place and method of service as would appear in a sheriff’s return. The court is limited to appointing non-party adult Louisiana residents.1

• 1La. C.C.P. art. 1293.