Monday, May 22, 2006

How May I Serve You?

Of all stages of the divorce process, giving and receiving service of process is probably one of the most emotional and misunderstood.

In most cases getting served with notice of a divorce is never a complete suprise. People in a happy marriage don't generally just wake up next to their loving spouse and say "I'm gonna get a divorce today". However, despite the many signposts that may pop up in the months and years preceeding a divorce suit, there is often a sense of suprise and betrayal by the one being served- even if it is simply the thought that "that SOB did it before I had a chance to!"

So why is all this sneeking around with a stack of papers necessary?

It is a basic tenent of the law that the person being sued in court has the right to know the action is happening and to appear in court to defend against the actions. There are strict requirements for service of process and the family law practictioner who ingnores them risks the prospect of a default ruling being retried in a motion for new trial.

Only certain people may serve process. Under the Texas Rules of Civil Procedure, this is (1) any sheriff or constable or other person authorized by law; and (2) any person authorized by law who is at least 18 years old and has not interest in the outcome of the case. (TRCP 103).

Process may also be served by mail. The problems with that is that if the party does not personally sign the return green card, there is no proof of the service if the party then complains and seeks a new trial.

A party may sign a waiver of service that they have received notice of the suit. This is usually the easiest method, but many times parties refuse to sign anything thinking that they are giving up some sort of rights. Usually the only thing they are doing is forcing delaying the inevitable.

Alterntive forms or service are available if personal service or mail by service is not possible. Permission must be obtained by the court to use the methods covered by TRCP 106. These substitute services include delivering the citation to anyone over 16 years of age at the last known address of the person to be served. These require an affidavit as well as a court order.

Another method of service is by publication. Service may be obtained by publishing under Rule 116. There are special provisions in the Family Code under TFC 102.010 and 6.409 which allow the publication to be only once. Also, if there is the case does not involve children, service may be obtained by posting notice of citation at the courthouse door. (The only exception to that is if the name of the respondent is not known in a termination case.)


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