Re: getting jurisdiction: who files first or who is served first? (Divorce Discussion & Support Forum) 4/7/2009 1391813

Re: getting jurisdiction: who files first or who is served first?

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DeniseinAZ Views: 8,295
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Re: getting jurisdiction: who files first or who is served first?

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I don't know what Arkansas is like, but thought Texas was one of the worst places to get a divorce in if you were a woman. Here is some info on the serving process.

"Service" or "Service of Process" is making sure the other side gets a copy of the papers you are filing (for example, a complaint). If you are starting a case, your case cannot go forward until the other side is served. Someone who is capable of serving must physically give a copy of all necessary forms to the person whom you filed a complaint against in court.

It is very important that you do this correctly. If you do not, then the court may dismiss your case. If you have an uncontested case and the other side is willing, there is a special rule to make service easier.

How Do I Serve a Complaint, Petition or Motion?

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What if the Case is Uncontested?

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What are the Methods of Service?

by sheriff,

by private process,

by certified mail using a friend or relative or other adult.

YOU CANNOT SERVE THE OTHER SIDE YOURSELF. Whichever method you choose, proof that the other side was served must be filed with the court. A person can be served at home, at work, or anywhere else the person happens to be.

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What is Service by Sheriff?

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What is Service by Private Process?

Private Process Serving Companies:

Private Process Using an Adult Over the Age of 18:

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What is Service by Certified Mail?

There are, however, problems with this type of service. Hostile opposing parties may not want to, and refuse to sign for the letters or simply not go to the post office to pick them up. In these cases, other service types such as by sheriff or by private service would be preferable.

If the receipt (green card) is returned with the wrong signature or if the entire envelope comes back undelivered, you will have to make another attempt at service or see an attorney.

If you have problems serving a party by certified mail you can contact the sheriff of the county where the party lives. You should explain to the sheriff that you have been unsuccessful at serving the party by mail and request their help. Ask the sheriff the cost of this service and any other requirements. A blank certificate of service and or certificate of evasion of service may have to be mailed to the sheriff.

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How Do I Serve an Answer?

If you are serving a counterclaim with your answer, you may serve the counterclaim (including all other domestic relations forms you have attached to the counterclaim) by mailing copies of everything to the other side. Fill in the Certificate of Service at the bottom of the counterclaim. Do not forget to file the counterclaim and all the forms attached to the counterclaim with the Clerk of Court.

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What if the Person I am Serving is in Jail?

You should not serve an inmate by certified mail. The inmate will not be able to sign for the package and the court may find that the service was not valid.

You should serve by a sheriff or private process server. If you do not have the money to pay for this type of service you may want to have someone you know over the age of eighteen serve the papers.

If someone you know is planning on serving the inmate s/he must do the following things:

call the prison to find out when visiting hours are

go to the prison during visiting hours

when the sheriff brings the server to meet with the prisoner the server must slide the papers to the prisoner and inform them that they have been served

After the server has served the inmate s/he must complete an Affidavit of Service of Process

You must then file this affidavit with the court.

What Happens if Service is Not Made?

Service by Posting or Publication is only done when the person who has filed has shown by affidavit that the whereabouts of the opposing party are unknown. Additionally, the person who has filed must show that reasonable efforts have been made in good faith to locate the opposing part. After those criteria have been satisfied, the court may order service by the mailing of a notice to the opposing party's last known address and by the posting of the notice by the sheriff at the courthouse door or on a bulletin board within its immediate vicinity, or by publishing the notice at least once a week in each of three successive weeks in one or more newspapers of general circulation published in the county in which the action is pending.

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What Happens After the Document is Served?

How Do I Get a Hearing Date?

If you have filed for divorce and the other party has filed an answer indicating that they agree with your request, you must then contact the Clerk of Court to request an uncontested hearing be scheduled.

If the time for the filing of the answer has passed and the other side has not filed an answer, you should file a Request for Order of Default (DR. 54). If the judge signs the Order of Default, you will then be able to request that an uncontested hearing be scheduled.

If you have not heard from the court once the answer is filed and you do not know what to do, you should contact the Clerk of Court to determine whether you need to request a hearing. You may request a hearing or other proceeding using the Request for Hearing or Proceeding Form (DR 59).

In order to ensure that you receive proper notice of all hearings, be sure that the Clerk of Court and the opposing party or their attorney always have your correct address. If you move while the case is pending, be sure to inform both the Clerk and the opposing party of your change in address in writing.

NOTE: If you have been the victim of domestic violence, or otherwise have concerns about your safety or the safety of your children, you may request that your address not be disclosed to the opposing party. If this is the case, do not put your address or the address of children residing with you on court documents. Contact the Clerk of Court to provide the court with your correct address and leave your address off all official documents and inform them of your request not to disclose your address. You should still send copies of all papers you file with the court to the opposing side, but they should not have your address on them.

What Happens in Court?
On the day your case is scheduled, make sure you are there early. Often you will need to check in with the court personnel in the courtroom. If you are not there when your case is called, your case could be thrown out or the court could rule in favor of the other side. If you have to miss your court date because of an emergency, contact the court BEFORE you are scheduled to be in court.

You may be able to have the court look at documents or other evidence, such as pay stubs or pictures. That day, have your documents and other evidence with you, have them in order, and have extra copies.

The other side and his or her witnesses also will have a chance to tell his or her story and can present the same kinds of evidence. You will have a chance to cross-examine the other side and his or her witnesses.

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What if I still have Questions after Reading these Instructions?
If you do not understand these instructions or you still have questions, please return to your local Pro Se Assistance Program for additional help. You can contact the Legal Forms Helpline at 1-800-818-9888 or the Family Law Hotline at 1-800-845-8550 for free legal advice on using the domestic relations forms or on family law issues.
In most counties, a court date is automatically scheduled. If you have filed for a divorce or if you are involved in a custody case, and if the case is contested, many counties will set a date for a Scheduling Conference and send you a notice requiring you to attend. Back to Top The person served has 30 days to answer if he or she is served in Maryland, 60 days to answer if he or she is served out of state, and 90 days to answer if he or she is served outside the United States. There may have to be several attempts to serve the other side by using different methods. A Writ of Summons is only good for 60 days, this means you must have the other party served within those 60 days. You will have to ask the Clerk of Court in writing to issue a new Writ of Summons if the other side has not been served within 60 days. You may be able to file a motion for Alternative Service (DR 70) if you cannot locate the opposing party. If several attempts to serve the other side have been unsuccessful you may have to consider serving the other side through alternative methods of service such as Posting or Publication. If the person you are serving is currently incarcerated you must obtain their inmate number. You can obtain this by calling the jail with the inmate’s social security number. You will need to have the inmate’s number on all necessary documents. You must mail a copy of the Answer and a copy of everything you are filing to the other side. Fill in the Certificate of Service at the bottom of the Answer. Do not forget to file your answer with the Clerk of Court. This is a good method of service if the other side lives far from you. It does require that the other side accept the papers and personally sign the receipt (green card). The adult serving the papers (other than you) should take the papers to the Post Office and follow the instructions for mailing by certified mail, restricted delivery, return receipt requested. The adult must fill out an Affidavit (DR 56) indicating that he or she mailed the papers and the other party received them. If the other side receives the papers, the receipt (green card) will be returned to you with the other side's signature. Attach the receipt (green card) and a copy of the Writ of Summons to the completed Affidavit, and file the Affidavit with the Clerk of Court as proof that the other side received the papers. This is an inexpensive way to serve someone. THE PRIVATE PROCESS SERVER CANNOT BE YOU. The adult serving the papers must give the papers directly to the other side. The adult serving the papers may NOT leave the package on the other side’s doorstep, however you can leave it at the opposing party's home with a roommate or with a relative if they are over 18 and reside in that home. Use discretion, its better to serve someone who is close to the opposing party than someone who is not, even if they live in the same residence. If serving the opposing party directly, the service package need not be placed in the other side’s hands, they just need to be given notice that they are being served and given the documents. Not holding the documents or dropping them is not a defense to service, you can leave the documents at their feet. The person who served the other party person must complete an Affidavit of Service (Private Process, DR 55). You must FILE the Affidavit of Service along with a copy of the Writ of Summons with the Clerk of Court, to prove the other side was served. This method is often fast and is also good if the other side is hard to locate. Ask the Clerk of Court to send you the Writ of Summons to mail. Give the process server the Affidavit of Service (DR 55) and the papers to be served. Ask the process server to return the completed Affidavit of Service to you once the other side is served. Once you have all the necessary documents, you must go back to the court and file the completed Affidavit with a copy of the Writ of Summons attached with the Clerk of Court. There are two ways to serve someone by private process: (1) by a private process serving company for a fee or (2) by an adult over the age of 18. You CANNOT serve the papers yourself.
You can have the sheriff serve the other party with the necessary papers for a fee. The fee for this service is usually approximately $40.00. If you decide to pay for this service you can ask the Clerk of Court (person with who you will file your complaint) what the cost for the service is. It is your responsibility to find out whether or not the person has been served. The sheriff will send the clerk a "return of service" to prove the sheriff served the papers. You may have to call the Clerk several times before the other party gets served. Service can be made in one of several ways. You need to choose a method of service: If the case is uncontested, and the other side gives you a notarized answer to the complaint which you file at the time you file your complaint, you do not have to do service of process. Service of process is accomplished by the filing of the notarized affidavit. This can save at least 30 days and expedite the date for a hearing.
The court will issue a Writ of Summons, 5 to 10 days after you file your Complaint, Petition, or Motion. The Clerk of the Court will send the Writ of Summons to your mail address, as the person who has filed. Attach the original copy of the summons to one copy of all of the forms that you filed with the court (Complaint, Domestic Case Information Report, Financial Statement, etc.). You must make sure that the Writ of Summons is attached to a copy of the complaint, petition, or motion. These papers must be served on the other side.

If you are serving an Answer or Counterclaim.What is Service?

Source: This material was originally created by Richard Granat, a Maryland private attorney. It has been expanded and updated by legal services provider staff working with the Maryland State Law Library.

Last Date legal review 01/18/08 (PLL/M.A.J.)