Incarcerated persons are served by personal service on the warden or the warden’s designee. The warden or designee, in turn, must make personal service on the incarcerated person. Proof of service is made by filing the affidavit of the person serving the citation and pleadings on the incarcerated person into the record of the proceeding. The affidavit should indicate that the server was the warden’s designee, that personal service was made, and when service was made. La. C.C.P. art. 1235.1(D) allows for an alternative procedure when the warden fails to return the affidavit of personal service, which happens often. If the warden’s affidavit is not forthcoming, counsel should submit an affidavit to the court detailing the attempt to serve the pleadings in order to establish that service was made.1

Several days prior to the scheduled court appearance, the attorney should check with the jail/prison to ensure that the defendant/respondent is still incarcerated. Also, you should inquire about the process followed by that jail/prison to guarantee that the prisoner will be delivered to court timely for a scheduled appearance. Some local jails may only require a letter from the attorney; some may require a court order. The attorney should be prepared to submit an order for transport of the adverse party to the court for the hearing.

If a hearing is required in a case against a prisoner, some judges will require and rely on the plaintiff or mover to supply a Writ to Secure the Presence of the Defendant or Writ of Habeas Corpus Ad Testificandum for hearings. When setting court dates (Hearing Officer Conferences, rules, or trials), be mindful of the transportation expense involved (if possible, set all matters on one day after consulting with the judge’s law clerk) as some prisons can be located a meaningful distance from the court where your matter is pending.

Service on a defendant who is incarcerated in another state should comply with the same due process safeguards as required by La. C.C.P. art. 1235.1 or use the method for sheriff’s service under the other state’s law.2 Contact a local legal aid office for guidance on their state’s laws for service of prisoners. Most legal aid clients are paupers. Some sheriffs from other states will graciously honor a Louisiana pauper order. Other states will only honor a pauper order from their state courts, which, as a practical matter, can be impossible to obtain. 

Domestic violence perpetrators can be slippery and inclined to dodge service. Therefore, you may want to serve such defendants while they are still in jail/prison. 

• 1See La. C.C.P. art. 1235.1(D).
• 2See La. R.S. 13:3204(A).

If you cannot locate and serve a Louisiana defendant or serve a nonresident defendant by certified mail or other authorized means under the Long-Arm Statute, you will have to request appointment of a curator for the defendant under La. C.C.P. art. 5091 and make service on the curator. Note that you must try to serve a non-resident under the Long-Arm Statute1 before seeking appointment of a curator. Some clients will work harder to find an address for their spouse if you advise them as to the additional cost and delays for a curator divorce. A curator divorce can be null if the spouse is not an absentee or the spouse’s whereabouts are known.

In Peschier v. Peschier, the Supreme Court upheld annulment of a curator divorce 17 years after entry of the divorce judgment because the defendant was not an absentee and could have been readily located.2 Thus, a diligent search that includes public records, the internet, telephone book, relatives, last known address should be documented in your Motion to Appoint Curator. You should use Westlaw or Google for “people search.” Include language that a diligent search was made. In addition, your client should verify in the Motion that the client has no knowledge of the defendant’s whereabouts and reference how long it has been since the client has known the whereabouts of the adverse party. 

A curator may waive citation and accept service of process. Generally, indigents cannot afford the publication fees or the curator’s attorney fees. Many courts will accommodate indigent plaintiffs by appointing a pro bono curator who will not charge attorney fees. However, the curator will expect the newspaper publication fees to be paid. 

The divorce is tried contradictorily against the curator. Check with the judge’s law clerk as to the level of formality that the judge requires for taking up the divorce. By law, once the Answer has been filed and a reasonable amount of time elapsed (allowing for the curator to place ads, etc.) the matter should be set for trial. If the curator does not want to be present for the trial, ensure that the curator’s Waiver and “Note of Evidence” are in the record. The trial of a divorce against a curator usually consists of presenting a prima facie case for divorce by oral testimony as in a default judgment.

While a default can be obtained against the Curator for failure to file an answer, this is not encouraged. All courtesies should be accorded to the Curator prior to this drastic action. A default judgment granted when the Curator has filed a responsive pleading will be a nullity. 

Although court costs should be cast to the absentee defendant (and you should ask the court to do so in the judgment of divorce), some courts may attempt to cast the client with costs of the curator.3 As a practical matter, the curator’s fees are usually paid by the client or, if the client lacks the means, from funds maintained for that purpose by the legal services law firm or by the court’s volunteer lawyer program. 

• 1See La. R.S. 13:3201–3207.
• 2419 So. 2d 923 (La. 1982).
• 3See Jones v. Jones, 297 So. 2d 198 (La. 1974) (holding that IFP litigants may obtain the services of a curator without prepaying the costs). For a more detailed discussion of IFP litigants’ eligibility for curator services, see Section 13 of the chapter on IFP procedures.

Indigent clients may be able to proceed without paying court costs as they accrue under Louisiana’s in forma pauperis procedure. These are discussed in more detail elsewhere in this manual.1

Because the clerk of court in most parishes wants to get paid, if an indigent client is assessed costs, this author generally recommends that they go to the clerk’s office and arrange to pay a de minimis monthly amount on the bill for costs. Depending on the court, doing so may avoid the clerk seeking a judgment against the client for unpaid court costs. This advice is always given with the understanding that paying the costs should not come before providing the basic necessities of food, shelter, clothing, and medicine for clients and their children.

In some cases, the ability of the Louisiana court to order “quasi in rem” decrees (e.g., costs) against the defendant who has had no minimum contacts with Louisiana and who has not subjected himself personally to the jurisdiction of the court, will not be possible. 

• 1For a detailed discussion, see this manual’s chapter on IFP procedures. Section 8.2 of that chapter identifies some concerns specific to an IFP divorce proceeding.