Service of Process
Once the initial documents (i.e. Summons and Petition for Dissolution of Marriage) in a Divorce action have been filed with the court it is necessary for the party seeking relief (“moving party”) to engage the services of a process server for the purpose of effecting “service” upon the other party. After completing the documents necessary for the relief sought from the court, the documents are then filed with the court and copies made and are then ready to be “served” upon the opposing or responding party. Service of the initial Summons and Petition generally must first be attempted by “personal” service.
Several alternative methods of completing the initial service are also available. For example, in cases wherein the parties are willing to cooperate with each other during the course of the proceedings, the moving party may utilize a document entitled Notice and Acknowledgement of Receipt wherein the opposing party “agrees to accept service” by signing the Notice and Acknowledgement of Receipt and returning the same to the moving party.
Service on a party whose whereabouts are not known may be completed after a licensed “skip tracer” has made a very exhaustive attempts to locate the current address of the person to be served. An Affidavit of “Due Diligence” setting forth all the activities utilized in attempting to locate the person to be served is then submitted to the Court setting forth the reasons for an “Application For Order for Publication of Summons.” If the Court is satisfied that the requirements of due diligence have been satisfied, then the party seeking to commence the Dissolution of Marriage action will be directed by the Court to publish the Summons in the newspaper of general circulation in the city of town where the opposing party last resided.
Should I use a friend to serve my spouse or use a licensed process server?
Although not required by law, we find that it is best to utilize the services of a licensed process server for several reasons: 1) A licensed independent process server has no interest whatsoever in the case, and therefore, should the actual service come into question, the affidavit of a disinterested third party is less likely to be subject to attack. 2) The experience and knowledge of the law relating to service of process possessed by a licensed process server may well result in the completion of the service of documents more quickly than if the service is attempted by a friend or relative of the moving party. 3) Although it is possible, the likelihood of a licensed process server completing a legally defective service is less likely than if the documents to be served by the moving party’s friend or relative, such person having little or no experience in subject of process serving.
How do I Serve a Spouse Residing in a Foreign Country?
Our most recent experiences in this area triggers a somewhat evasive answer --- “It depends on the discretion of the Judicial Officer assigned to the case, with respect to uncontested matters, wherein the parties agreed on all issues of the divorce. Some of the Judicial Officers agree to allow the filing of a Notice and Acknowledgement of Receipt in such cases, however others have required the employment of the detailed and tedious process of international service governed by “The Hague Convention.” Without going into any more confusion relating to the requirements of service through the Hague Convention, (the full title being: Convention of the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters), the requirements are relatively burdensome, expensive (several thousand dollars) and time-consuming (two to four months). There are various firms recognized as specialists in this area of the law and a person faced with the need to complete service of a party residing on foreign soil is strongly advised to consult with professionals versed the that narrow field of law. As of May, 2013, there were 68 countries that had become members of the Hague Convention. We have been successful in challenging the Judicial Officer’s initial ruling that the Notice and Acknowledgment of Receipt method was disallowed and that service by The Hague Convention was then ordered. Our client’s affidavit that the costs involved in complying with the Hague Convention requirements were so onerous that she would be deprived of obtaining the uncontested divorce for years then tipped the judicial scales back in the client’s favor of enabling the Notice and Acknowledgment of Receipt to be employed.
With respect to the bulk of the nations in the world that have not yet recognized the Hague Convention, there are additional means of completing service on parties unwilling to acknowledge service by way of signing and returning a Notice and Acknowledgment of Receipt. Therefore, it is possible to employ the use of a private process server in the foreign country. The international process serving firms referred to above, generally provide the option of procuring the service of process servers in foreign countries, those persons who are generally retired police officers or the like. The cost generally quoted during the first quarter of 2014 is the sum of approximately $1,300.00 for that form of international service to be completed. Another means of completing service on a non-cooperative party whose domicile is in a foreign county is by what is called a Letters Rogatory. In very brief summary, Letters Rogatory is a method by which a court in the United States will seek assistance in performing some kind of legal action in the foreign country (generally a matter of service of process) in which a court in the foreign county will provide judicial assistance in affecting service on the foreign domiciliary. The cost of employing the process of Letters Rogatory through the utilization of one of the recognized international service of process firms is in the neighborhood of $3,000.00.