Divorce cases can be very frustrating. And one of the more frustrating aspects of the divorce case is accomplishing service of process. Service of process is the step in a divorce case that requires that party being sued has received formal notice of the suit being brought against him or her.
The traditional and most preferred form of service of process is when a process server approaches the person being sued and hands him or her papers that have been filed in the court naming him or her as the respondent. There is usually a sheet of paper stapled to the petition. That sheet of paper is called the citation. A process server leaves a copy of the citation with the person being served and then returns another copy of the citation for filing with the court in which suit has been brought. When this citation has been filed with the case file it becomes prima facie proof that the respondent has been served and now officially knows about the case. If the person being sued fails to make some type of appearance after been served process in the case then he or she can be defaulted and the petitioner can ask for whatever relief he or she seeks without the respondent participating in the action.
Sometimes a process server will attempt to serve a lawsuit on a respondent without success. He or she then creates an affidavit showing his or her due diligence to secure service of process. When this happens the attorney for the petitioner will then seek what is called substituted service. The attorney will ask the court to allow the process server to serve a relative or someone else living in the same residence as the respondent or to serve a relative who the attorney is confident will notify the respondent of the suit. Once that fellow resident or relative is served then that citation is returned for filing with the court.
Now, if actual service or substituted service is not feasible then the petitioner’s counsel will ask the court to serve the respondent by publication. This will require the attorney to prove to the satisfaction of the court that he or she has exhausted every means available to serve either the respondent or a suitable alternative person. The court can then order service by publication. The court will order that the citation be published in an appropriate publication of general circulation. The court will also require that an ad litem attorney appear in the case and testify whether all steps short of publication have been thoroughly exhausted. This attorney can question the petitioner and any other witness in order to determine whether publication should, in his or her opinion, be allowed.
This part of the case can be very time consuming and expensive, but it’s critical. Without some type of service the case is stalled!
There are alternatives to service such as getting a respondent to sign either a waiver or the actual final decree, agreeing with its terms.
An experienced family lawyer can help you in civil cases to get that process served! Call us with any of your questions about this critical step. We have handled thousands of family cases and have all of the above means to accomplish service of process.
Note, service of process in Mexico is very complicated and would require its own lengthy treatment in a separate writing.
We are ready to help. Please email us directly or call us directly at: (915) 593-6600 or (915) 256-0579 for assistance! Don’t go it alone!! There are far too many details you could miss! Standing by for your call!