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Tag: service of process

Understanding legal terms in Utah divorce actions

If you’re anything like I am, you don’t like being ignorant and confused about terms aren’t familiar with and do not understand. If you are contemplating divorce or find yourself in the midst of a divorce, you will encounter a lot of new legal terms. Understanding them correctly will help you work your way through a divorce with more confidence and less worry. These videos will introduce you to the terms you will hear and need to understand. In this first video we will define some of the most common terms you’ll read or hear in the beginning stages of a divorce case in Utah. Subsequent videos will provide you with a glossary of other terms in alphabetical order.

Most of the definitions I’ll share with you come from Black’s Law Dictionary.

divorce

divorce is the legal ending of a marriage; specifically, the legal dissolution of a marriage by a court. Also termed marital dissolution; dissolution of marriage. A divorce is not the same as an annulment.

divorce action

a divorce action is a lawsuit initiated in court by means of a spouse filing a complaint or petition for a dissolution of the marriage. Sometimes “divorce” is used as an abbreviated form of “divorce action,” such as, “the divorce was filed today” or “the divorce is proceeding in Salt Lake County.”

petition or complaint for divorce

The initial pleading that starts a divorce action and states the basis for the court’s jurisdiction, the basis for the petitioner’s claim, and the relief requested.

pleading

a formal document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or responds to allegations, claims, denials, or defenses.

verified complaint or petition

a complaint or petition for divorce that is signed under oath or affirmation by the petitioner attesting to the truth of the factual allegations in the complaint.

summons

a document that is served on the respondent (see the definition for “service of process”) requiring the respondent to appear and answer a complaint/petition for divorce.

service of process

the formal delivery of a writ, summons, or other legal process, pleading, or notice to a litigant or other party interested in litigation; the legal communication of a judicial process

petitioner

a party to a divorce action who presents a petition or complaint to a court seeking relief

respondent

the party against whom a divorce petition or complaint is filed in court. The respondent “responds” to the petition or complaint for divorce.

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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What happens if you are served divorce papers yet don’t sign them?

What happens if you are served divorce papers yet don’t sign them?

I will answer this question as it applies in the jurisdiction where I practice divorce law (Utah):

If by “served divorce papers” you mean that you are served with a summons and complaint (or petition) for divorce, then if you do not take those documents (the “papers”) from the process server and/or do not sign acknowledging receipt, you are, unless the court orders otherwise (and I’ve never experienced the court order otherwise) still served with the summons and complaint. Otherwise stated, “refusing” to take the documents when the process server attempts to hand them to you does not mean you are not served and “refusing” to sign for the documents when the process server attempts to hand them to you does not mean you are not served either.

If you hide from the process server thinking you can’t be served if you can’t be found, that’s not true either. If you try to avoid service, your spouse may file a motion with the court asking to allow service by some other means, such as by publication in a newspaper, by mail, by email, or even by text message or instant messenger.

If by “served divorce papers” you mean that you are mailed or given a proposed divorce case settlement agreement, then whether you choose settle on those terms is your choice. But remember: just because you did not sign your spouse’s proposed settlement agreement does not mean you will prevent the divorce from occurring. If you and your spouse do not settle, then the case will go to trial and be decided by the court after a trial.

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

https://www.quora.com/What-happens-if-you-are-served-divorce-papers-yet-don-t-sign-them/answer/Eric-Johnson-311?prompt_topic_bio=1

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In obtaining a divorce, are both parties served?

In obtaining a divorce, are both parties served?

Yes, but not in the way you may mean.

What usually happens is that one spouse files for divorce in the court and then has a summons and a copy of the complaint for divorce served on the other spouse. At that point, the other spouse can either file an “answer” to the complaint for divorce or file a counter claim for divorce.

That answer is served on the filing spouse, but need not be served personally as the original summons and complaint must be. The answer can be (and usually is) served by mail (or served electronically, if the courts in your jurisdiction allows that).

If a counter claim for divorce is filed, then it must be served on the spouse who originally filed for divorce, but it need not be served personally with a summons. It too can be served personally, by mail, or served electronically, if the courts in your jurisdiction allows service by electronic means.

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

https://www.quora.com/In-obtaining-a-divorce-are-both-parties-served/answer/Eric-Johnson-311

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Can I serve my spouse with divorce papers in person and have them notarized?

Can I serve my spouse with divorce papers in person and have them notarized?

In Utah, no. But here is how (see Utah Rules of Civil Procedure, Rule 4(d)) you can serve your spouse without personal service on him/her:

(d)(2) Service by mail or commercial courier service.

(d)(2)(A) The summons and complaint may be served upon an individual other than one covered by paragraphs (d)(1)(B) or (d)(1)(C) by mail or commercial courier service in any state or judicial district of the United States provided the defendant signs a document indicating receipt.

(d)(2)(B) The summons and complaint may be served upon an entity covered by paragraphs (d)(1)(E) through (d)(1)(I) by mail or commercial courier service in any state or judicial district of the United States provided defendant’s agent authorized by appointment or by law to receive service of process signs a document indicating receipt.

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

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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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