Imagine you are sitting around your kitchen table on a Saturday morning enjoying a bowl of cereal and a cup of coffee when you hear a knock at the door. You are surprised because you were not expecting any visitors, but you put down your spoon and walk towards the front door. When you open it, there is a man standing on your doorstep whom you have never met. He asked you your name. You answer. He hands you an envelope and walks away. You have just been served.
What Does Service Mean and Why Is It Important?
Every family law case begins when someone files a Petition and Summons, which then need to be served on all parties involved in the case. Unless otherwise agreed upon by the parties, the Petition and Summons must be personally served. All parties have a right to be notified if they are involved in a legal matter and have a right to review all documents filed in the case. If you cannot prove the other side has been altered of the case, the court cannot rule on the issues and your case will not advance. An Acceptance of Service form or a Declaration of Service needs to be filled in order to move the case forward.
But… How Do I Serve The Other Party?
Will the other party accept service?
Service does not always have to be difficult, especially if the case is uncontested or the parties agree on many of the issues. The easiest way to complete service is to deliver the documents yourself and have them sign an Acceptance of Service form. You cannot force the other party to sign the form, but if they are willing to accept service this is your best option. Signing an Acceptance of Service form does not necessarily mean the other party agrees with the documents you are serving; it just means they received the forms. They can still file their own material outlining their position if they do not agree with everything you filed.
What if the other party will not accept service?
If there is tension between the parties or you do not feel comfortable asking the other party to sign the Acceptance of Service form, you must arrange for a third party who is over the age of 18 to serve the documents. This can be a professional process server or personal investigator. In really contentious cases, you can arrange for a police officer to serve the documents. Sometimes it can take multiple attempts before service is successful, so do not assume a party is dodging service just because they were not home during the first attempt. It is helpful to try serving them at different locations like their home and workplace. Also, try serving during different times of the day in case the other party has an irregular work schedule. The server may need to wait outside their house for a few hours so they can catch them as they are entering or exiting the home. You can ask a family member or friend to serve the documents as well. This can be helpful if you feel the other party is more likely to open the door to a familiar face rather than a stranger. Just ensure that the family member or friend is not a party to the case themselves.
If service is successful at any point, it is important that the person who served the documents fills out a Declaration of Service form. Many process servers, private investigators, and police officers know this rule, but you should ensure it is filed with the court before moving forward.
What If the Other Party Is Dodging Service?
This is unfortunately common and can be extremely frustrating. You cannot skip service altogether, but you do have options. You can file a motion and ask the court to allow you to serve via an alternate method. Your motion should explain each and every way you tried and failed to serve the other party. If the court agrees that you have tried in good faith, they should grant your motion.
Motion to Serve by Mail or Certified Mail
Filing a Motion to Service by Mail or Certified Mail is a good option if you have a valid address for the other party. If the court agrees to grant your motion, it will sign and enter an Order Allowing Service by Mail or Certified Mail. At that point, all you need to do is mail the documents to the party’s last known address. Be sure to have someone who is not a party to the case physically mail the documents and complete a Declaration of Service form. Once this has been filed, proper service has been completed and you can move forward to the next step of the case.
Motion to Serve by Publication
In some family law cases, the other party’s address is unknow which can make service difficult. The best option in this scenario is to file a Motion to Serve by Publication. Assuming the court grants your motion and enters an Order Allowing Service by Publication, you can publish the Summons and Petition in a local newspaper. The hope is that the opposing party will either see the publication themselves or be alerted by someone else who saw it. In order for this to happen, the publication must be in a newspaper in opposing party’s last known location. Each county has different rules regarding how many weeks the publication must run, so be sure to review the court’s rules.
Motion to Serve by Social Media
Believe it or not, you can even ask the court for permission to serve by social media by sending the documents via a direct message. The process is very similar to the two motions above, but in this scenario you need to show the court that the other party is active on social media, and there is a high likelihood they will receive the message with the attachments.
Can I Ask the Court to Default a Party?
Finding a party in default is rare and should really be a last resort. The court will only find someone in default if proper service has been conducted and the other party is still refusing to participate in the case in any way.
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If you have filed a family law case and are struggling to serve another party, please contact our office and schedule a consultation. Our team of attorneys have local connections from their years of experience that can make the process much easier.
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Every legal issue is very unique. Accordingly, the information in this blog is intended as general education material and not as legal advice. If you think you may have a legal issue, you should consult an attorney.