How You Serve Divorce or Custody Papers Matters

On behalf of The Marks Law Firm, L.L.C. posted in Divorce and Service of Process on Friday, July 11, 2014

If you take a survey of individuals who have been through a divorce or custody dispute, and ask them to share the single worst moment of the process, many will answer, “receiving the initial summons.”

To begin a divorce or custody case, one party must file an initial pleading (a petition) with the circuit court.  Once the court receives the initial pleading, the court will issue a summons – a certified copy of the initial pleading with an order to appear in court on the matter at a given date and time.  Without proper service of process, the initial pleading could be subject to dismissal.

Service of process can take many forms.  First, the party filing the initial pleading and opening the case (the petitioner) can provide an address and the sheriff of the county will serve the other party (the respondent).  The address can be a residence or a place of business.  Second, the petitioner can choose to use a private process server, who can serve the respondent anywhere he or she may be found.  Third, the petitioner can arrange for delivery of the summons in a mutually agreed upon manner with the respondent through a process known as waiver and acceptance, where the respondent signs an acknowledgement waiving service by the sheriff or process server and agreeing to the other method.

Legally, any of the three methods of service accomplish the task and allow the case to proceed without any issues of insufficient service of process.  Practically speaking, each method has a potentially profound impact on how the case will proceed.

Most people dread having a police officer approach their home or place of business and ask for their name.  Immediately, one begins to think the worst, that in a few moments one will be handcuffed and taken to the station – even if you know you have not done anything wrong.  It can be quite stressful for some people to go through that experience.  When the officer leaves only papers rather than executes an arrest, one does not automatically feel relief – one still has to read in black and white that your spouse or the parent of your child intends to take you to court and unravel your family.  And if this occurs in your place of business, in front of clients or colleagues, the sense of embarrassment or anguish only grows.  Clearly, the recipient of the summons will remember this moment for quite some time and it could color how he or she proceeds in the case.  Perhaps this person knew the marriage had been difficult or the other parent threatened legal action, but that remained just talk – now it became real, and it felt like a surprise and, whether intended or not, felt malicious.

Sometimes it actually is.  Some people want the summons to create as much embarrassment as possible.  They filed suit for a reason, and they feel angry and hurt and want the other person to feel some of their pain.  But that momentary satisfaction of shaming the other person could create a backlash, making that person choose a more hostile legal position.  Where once if the parties kept everything private and openly discussed the one receiving process would be open to your position or at least compromise now feels the opposite and stakes out an oppositional stance.

The law requires proper service of process to make sure that the other party is fully aware of the new case filed by the petitioner and the obligation to respond by filing an answer or appearing in court.  Without proper service of process, the petitioner could receive a default judgment that only later would have to be voided and the process started anew.  Service of process is a procedure for fairness, not an occasion for fear or embarrassment. Sometimes using a private process server may be required.  Some spouses sense or even know that the other party has filed and will go to great lengths to avoid service of process, knowing that the case cannot begin until after service is complete.  But in most cases, if preferred, it can be avoided.

It is important to discuss with your attorney the method of service you prefer and the consequences of each.  In the long run, you may find that a waiver and a quiet start to the process may make the most sense for your long run legal position.

If you have questions about service of process in divorce or custody disputes, contact us – we can help.