Serving Your Spouse - An Overview

The law in all 50 states, and the District of Columbia, provides that when one party initiates a suit against another, the party being sued must be informed - be it a person, as is the case when a man and woman divorce, or a partnership, a corporation or the government.

Formal notice is called service of process, and, in the case of a divorce, it is the second step the couple takes after one of them has filed. As it applies to divorce, service of process means that the respondent (also called the defendant in some jurisdictions) receives copies of any papers related to the action (the “divorce papers”) filed by the petitioner (also called the plaintiff).

In almost all jurisdictions, the “divorce papers” are a summons and a complaint (or petition). The summons informs the defendant that he or she must answer the complaint in a certain number of days or face a default judgment against him or her.

The person who delivers the papers is called the server or process server, and he or she must complete the appropriate forms showing that the papers were properly served. A court cannot make any permanent order or judgments until the respondent has been properly served.

Service Essential to Due Process

Rules of civil procedure and criminal procedure determine the proper form of legal process and how it should be served. The concept of notice is critical to the integrity of the American legal proceedings.

Divorce, like other areas of law, is both procedural and substantive. Due process forbids legal action against a person who has not been properly informed and given a chance to be heard.

Process must be properly served. Anyone who is not served is not bound by the decision in the case. The process server must file an affidavit of service with the court, giving details of the delivery of the papers. If the facts in an affidavit of service falsely assert service of process, the person who swears to them can be prosecuted for perjury.

A person who believes that proper service has not happened may generally challenge the service without actually making a formal appearance. The legitimacy of a service of process is usually determined at a pretrial hearing. The defendant requests a special appearance for the limited purpose of “challenging the sufficiency of the service of process or the personal jurisdiction of the court.” No other issues may be raised without the proceeding becoming a general appearance. At the hearing, the court determines the sufficiency of the service and whether it has jurisdiction over the defendant.

Three Methods of Service

In divorce actions, three basic methods are used for service of process: (1) actual, or personal, service, (2) substituted service, and (3) service by publication.

Each method is legally acceptable.

Personal service (“hand delivery”) is preferred because it is the most effective way of providing notice, and an uncooperative defendant will usually have great difficulty attacking its legality. Traditionally, personal service was the only method of service allowed by law because it was best suited to give the defendant notice of the proceedings.

Hand delivery means physically placing the divorce papers in the hands of the recipient. When properly documented (with an acknowledgement of service) and legally executed, hand delivery “is extremely difficult to challenge in court.”

However, not infrequently in divorce cases the recipient is evasive or uncooperative, so “hand delivery may not be possible.” For the most part, courts permit process servers to use any legal means necessary to serve papers on reluctant defendants. For example, a process server may knock on the defendant's door and state that he has a package for the defendant. If the defendant opens the door, the service of process is valid.

A defendant cannot avoid the service of process by refusing to accept delivery of the papers. Courts have upheld service where the process server “dropped the papers at the defendant's feet, hit the defendant in the chest with them, or even laid them on the defendant's car when she refused to get out or open the door.”

On the other side of the coin, process servers sometimes call the recipient in advance to determine whether or not the recipient will cooperate with the service. Sometimes, the server and the recipient negotiate a mutually acceptable time and place to exchange the papers. When the recipient is cooperative, servers go out of the way to avoid delivery at a time or a place that might cause the defendant embarrassment.

Substituted service is any method used instead of personal service. Forms of substituted service vary among different jurisdictions, but each is intended to offer a good chance that the defendant actually learn about the proceedings. A number of states allow service simply by mailing the papers to the defendant's address; generally registered mail is required. If a defendant is not at home, many states permit service by leaving the papers with any person at the defendant's home who is old enough to understand the responsibility of accepting service. Some states permit service by affixing the papers to the entrance of the defendant's home or place of business and then mailing a copy of the papers to the defendant’s last known address. This method is often called "nail and mail" service. Under the laws of some states, substituted service may be used only after diligent efforts to effect personal service have failed. Diligent service means a good faith effort. Some forms of substituted service may have to be tried before others can be used. Other states permit substituted service at any time or after a single attempt to find the defendant and serve the papers personally.

A third method of service is publication of a notice in a newspaper. Publication is called “constructive service” because the court construes it to be effective whether the defendant actually reads the notice or not. Generally service by publication is allowed only with the permission of the court, which usually grants it after the plaintiff demonstrates that no other method of service can be effected. Usually the legal notice must be published in at least one newspaper of general circulation where the defendant is likely to be found or where the court is located or in both places. Ordinarily the notice must be published on more than one occasion, such as once a week for three weeks. This form of service is deemed complete, or effective, a certain time after the first publication, such as 30 days.

In truth, courts realize that defendants rarely read notices published in newspapers, but the effort must be made when the defendant cannot be found and served in any other way. Plaintiffs prefer not to use publication because it is expensive and a court might later find that the defendant could have been served personally.

Where Process May Be Served

Legal papers may have to be served within the geographical reach of the jurisdiction, or authority, of the court. For lower-level courts, which hand down divorces, service may have to be made within the county where the court is located.

When Papers Can Be Served

The proper time for service of process depends on the law of the jurisdiction. Service must be made within the time that the statute of limitations allows for starting that particular kind of action because it is service that starts the lawsuit.

Many states prohibit personal or substituted service on Sunday. Service is also prohibited on legal holidays in some states.

Process Servers

Every jurisdiction specifies who may serve process. Many states take a simple approach and allow service by any person over the age of eighteen who is not a party to the suit.

Nine jurisdictions - Alaska, Arizona, California, Illinois, Montana, Nevada, Oklahoma, Texas and Washington - require process servers to be licensed. Some municipalities in Florida, Missouri and New York have local licensing laws. Some states require them to be bonded. Others require them to pass examinations.

A professional process server may be hired where service does not have to be made by an officer, but this is not necessary. In some jurisdictions anyone who serves more than a specified small number of summonses a year must be licensed. Laws generally provide for fines or imprisonment of an unlicensed process server, but the court will not dismiss cases begun with service by an unlicensed process server.

Invalid Service

The tricks of serving process papers can, however, reach a point that the courts will not tolerate because they subvert the purpose of service or threaten to disrupt the administration of justice. The most intolerable abuse is called sewer service. It is not really service at all but is so named on the theory that the server tossed the papers into the sewer and did not attempt to deliver them to the proper party. Sewer service is a fraud on the court, and an attorney who knowingly participates in such a scheme can be disbarred.

Service is also invalid if the defendant has been enticed into the jurisdiction by fraud. Courts have ruled that luring a potential defendant into the state in order to serve him or her with process when no other grounds exist to assert jurisdiction over him or her in that state violates the individual's right to due process of law. Service of process by fraud is null and void.



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