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Tag: personal service

What are the Steps for Getting Divorced in Utah?

What are the Steps for Getting Divorced in Utah?

To start the divorce process, you must begin by filing what is called a complaint or a petition for divorce with the court. This means you are suing your spouse for a divorce. Don’t let the term “suing” frighten you or your spouse. “To sue” means to institute legal proceedings against your spouse. That’s all.

Then your complaint or petition for divorce is served on (or officially delivered to) your spouse, usually by a law enforcement officer or a private process server. You can also waive personal service by a law enforcement officer or process server and just accept service by signing a simply accepting the documents without the need for personal service.

If you and your spouse agree to the terms of your divorce, also known as an “uncontested divorce,” the issue of “service of process” doesn’t come up because you submit voluntarily to the jurisdiction of the court by signing and filing with the court your divorce settlement agreement and other documents that indicate you recognize you are subject to the to the jurisdiction of the court.

If you’re the one seeking a divorce and the one who filed for divorce, your spouse has 21 days to respond to the complaint for divorce or 30 days to respond if your spouse is served outside of the state of Utah.

The name for the response to a complaint for divorce is an “answer”. If you wish to countersue your spouse for divorce after you get served with a petition or complaint for divorce, you can file an “answer and counterclaim”.

How the case proceeds from this point could take various routes:

  • At any point during the pendency of the case, as long as the trial has not concluded and the court issued its decree and orders, you and your spouse can reach a settlement agreement.
  • After the complaint and answer or answer and counterclaim are filed, the parties have to exchange some initial financial information and information about the evidence each party has and what witnesses the parties might call to testify at trial.
  • Then the parties have 180 days to conduct discovery. The purpose of discovery is to obtain facts and information that will reveal the truth in a matter and help both parties and the court determine what’s truly in dispute and what is not. After discovery closes, then the case is almost ready to take to trial, but not quite.
  • Before a divorce case can go to trial in Utah the parties must first to go mediation and try to settle the case (if the parties don’t want to go to mediation they can ask the court to waive the mediation requirement “for good cause,” but it’s not easy to get the court to find good cause to waive mediation. Most couples go to mediation, even if they think it won’t work, if for no other reason than to check the “we went to mediation” box, so that they can get to trial.
  • After discovery closes and mediation is completed, either party can certify the case as read for trial.
  • Then the court schedules one or more pretrial conferences to prepare for trial, set a trial date, the number of day the trial will take, and other matters.
  • After trial, the court can take up to 60 days to issue its decision on the case, after which one of the parties’ respective attorneys is ordered to prepare the Decree of Divorce for the court’s signature.

That’s the Utah divorce process in a nutshell.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Is service of legal papers other than in person fair?

Is service of legal papers other than in person fair?

I recently received a follow up question on this original question I answered on Quroa:

How can I sue someone without knowing their address?

My answer was:

In Utah, if you can persuade the court with which you have filed your law suit that you have made, without success, a duly diligent search for a way to serve the defendant, the court will allow you to serve the defendant “by publication,” meaning by publication in a newspaper of general circulation in the city where the defendant was last known to have been found or publication by posting notice in the courthouse, or online, etc. The point being that if there is no other way to achieve service of process personally upon the defendant or by mailing a copy of the complaint and summons to his/her U.S. Mail address or e-mail address or by text message to his/her cell phone, etc., then service by publication is what the court will permit, so that your law suit can proceed.

The follow up question was this:

Wow, this sounds really extreme. I’m not an attorney and from your profile it seems that you are, but I just can’t understand logistically how a Court could allow this. Perhaps when everyone received circulars this might have been more reasonable, but with so many news sources I don’t know how you could possibly expect that the person being served to see this. Would a Judge allow summary judgment if they didn’t respond after the publication?

Here is my follow up answer:

Remember, a plaintiff is not granted leave to serve by alternative means without first proving to the court’s satisfaction that the plaintiff “the identity or whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence” or “if there is good cause to believe that the person to be served is avoiding service.” The party moving the court to allow service by means other than personal service “must set forth the efforts made to identify, locate, and serve the party” before the court will permit service by alternative means.

Alternative service used to be primarily by publishing in the newspaper when newspaper delivery and reading were ubiquitous. Now that fewer people read newspapers with every passing day, alternative service has moved to things like mail to last known mailing address, an e-mail to last known address, to a social media account, or a text message to last-known phone number. That’s fair. That’s reasonably and honestly calculated to try to reach the defendant and give him/her notice. How else would you reasonably expect alternative service to be achieved?

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-can-I-sue-someone-without-knowing-their-address/answer/Eric-Johnson-311

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Can the divorce go through if you have not been served divorce papers?

Question: Can the divorce go through if you have not been served divorce papers?

Answer: No divorce action can be decided and a judgment entered unless the defendant or respondent (the terms differ depending upon what jurisdiction you’re in) has first been served with a summons and a copy of the complaint or petition for divorce (the terms differ depending upon what jurisdiction you’re in). If you have not been properly “served with process,” then the court does not have jurisdiction over you or over the divorce case and cannot issue a decree of divorce.

“Service of process” is the procedure by which the party who files a divorce action in court gives appropriate notice of the legal action to the defendant/respondent and court, so that 1) the court can legally exercise jurisdiction over the person served and the controversy between the parties, 2) the person served is given opportunity to respond to the complaint/petition filed with the court.

https://en.wikipedia.org/wiki/Service_of_process

In Utah (and in every other state too), there are alternatives to personal service. I will describe Utah’s alternatives here.

Under certain circumstances, the summons and complaint may be served by mail or commercial courier service, as long as the defendant signs a document indicating receipt. If your spouse wants the divorce as much as you do and is willing to cooperate in effectuating service of process, your spouse may accept service of the summons and complaint by signing a document that acknowledges receipt of the summons and complaint, and then having you or your spouse file that “acceptance in lieu of personal of service” document with the court.

Your spouse’s attorney may also agree to accept service of a summons and complaint on behalf of the attorney’s client by signing a document that acknowledges receipt of the summons and complaint, and then filing that document with the court.

Some people falsely believe that if they are not personally handed a copy of the summons and complaint that the court can never acquire jurisdiction over the person and the divorce case. And so he/she refuses to come to the door when the process server knocks believing that as long as he/she refuses to accept the summons and complaint the divorce cannot be granted to his/her spouse. This idea is known as “evading service of process.”

If the identity or whereabouts of your spouse are unknown and cannot be ascertained through reasonable diligence, if service upon all of the individual parties is impracticable under the circumstances, or if there is good cause to believe that the person to be served is avoiding service, the party seeking service may file a motion to allow service by some other means.

If the motion is granted, the court will order service of the complaint and summons by means reasonably calculated, under all the circumstances, to give your spouse notice of the divorce action and an opportunity to respond. Forms of alternative service include an order from the court that you publish notice in the newspaper or an order that your spouse be e-mailed a copy of the summons and complaint, if you can prove to the court that you have an e-mail address for your spouse that he/she is using or likely to use. Alternative forms of service can get creative.  Depending upon how hard it is to locate your spouse, the court may grant you permission to give notice the only ways you have available to you. If all you have for your spouse is a telephone number he/she will answer to, the court may even allow you to call your spouse or send him/her a text message to give notice of the lawsuit and tell your spouse that the summons and complaint can be found at the courthouse. If your spouse is active on Facebook, the court may allow you to notify your spouse by Messenger. As long as the means of service is reasonably calculated, under all the circumstances, to apprise your spouse of the action, the court can approve those means.

Here is the rule in Utah governing service of process: Utah Rules of Civil Procedure, Rule 4.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Selling Personal Service vs. Running “a Business”

Personal service is getting scarce. That’s not necessarily a bad thing. Some services we’re happy to accept from a machine: a quick car wash, the convenience of an ATM. But some help (and the price paid for it) requires personal service.

But have you heard of the difference between “having a job” and “running a business”? It’s a popular idea among professionals of all stripes. It can confuse and hurt you, if you don’t know it and recognize it when you start your search for your divorce lawyer (or any other kind of lawyer you may need).

You reap what you sow.

Who wouldn’t enjoy a thing that brings customers in and spits money out the other end? With the exception of owning a slot machine in a Wendover truck stop, the idea is a fantasy. You reap what you sow. What a divorce lawyer sows is his effort within the context of his skill and expertise. Selling personal service means the lawyer is literally offering to give of himself in performing those services.

Would you patronize a physician who focuses on how to bill the patient, yet spend as little time with a patient as possible? Consciously hire a lawyer who doesn’t work on your case, has a junior associate do all the work, and then takes the credit (and bills for) the work as his own?

As tempting as it is to sell one thing and deliver another that’s nothing but bait and switch.

Did you know that Betty Crocker isn’t a real person? Never was. Neither was Atticus Finch, the patron saint of lawyers. Lawyers look to a fictitious person as their exemplar. But I digress.

The face of law?
Atticus Finch (not really) – fictitious lawyer

 

Other People’s Time, Other People’s Effort

Granted, a one man band will rarely outperform the well-run orchestra. A good professional must not run faster than he has strength. No one expects a good doctor to do routine work like administering shots. The good lawyer need not waste time scheduling his own appointments. Every savvy businessperson must organize his/her business and have administrative help, or he 1) can’t do his best, highest work; 2) can’t develop professionally; or 3) (ironically) grow his business.

But this “build a business that runs without you” mentality does not apply (it cannot apply) effectively, morally, or ethically for people who offer and provide personal services personally.

Selling Personal Service, but Delivering Something Else (even if it’s not bad)

If you market “a law firm,” as opposed to “Bob Smith, Esquire,” you’re offering the services of a business (a group of people and equipment–like a corporation–that provide the service, and it doesn’t matter who or what they are specifically, so long as they deliver). ‘Nothing wrong with that because you’re being transparent about what you offer and who and what does the job.

If you market YOUR legal services you’re marketing yourself, your skill, your expertise, not just “your system”. It’s cheating the customer to market yourself, then deceptively hand off the client to your “system” to process them through, never to have any further help from you. If you personally offer to care for someone, you (not an army of surrogates) are expected to provide the care offered. That’s what you sold, that’s what is paid for. That is what you are obligated to deliver.

Who’s with me?

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