What should I do when a family court judge refuses to look at my evidence of abuse because my ex’s lawyer lied about me bringing it to him when I had a witness with me?
What you can or should do depends upon why the judge would not consider your evidence.
You say that the judge refused to review your evidence because the judge believed a lie that your ex’s lawyer told him (I presume) something along the lines of “Objection, Your Honor, I was never given a copy of these documents/photographs/recordings. I’m not prepared to address them.”
You claim that you can prove that your ex’s lawyer is lying because you had a witness with me when you delivered the evidence to your ex’s lawyer (I presume) well in advance of the hearing.
It appears that either the judge did not believe you, or, if you did not bring the witness with you to court, that the judge ruled that without the witness’s testimony the judge would not believe that you served your ex’s lawyer with the evidence, and thus would not allow you to present that evidence to the judge.
The lesson learned here?: when you deliver or serve documents/photographs/recordings to someone and need proof that you did so, use a method of delivery or service that provides an objective means of proving it. Have the lawyer or someone at his/her office sign for the documents/photographs/recordings when you or someone from the post office deliver(s) them. Or you could email the documents/photographs/recordings to the lawyer, which would another way of proving that you delivered/served them. Another thing you could do is file a copy with the court which, though it does not objectively prove you delivered/served the documents on the lawyer, the point is that if you went to the trouble of filing them with the court, then it’s more than likely you also delivered/served them on the lawyer too. Another thing you or your lawyer should do is file a certificate of service with the court that you or your lawyer served/delivered them.
Do I need to show up for court if I was never served papers? I live in South Carolina.
I cannot speak for or about the jurisdiction of South Carolina because I practice law in Utah (so you need to inquire with a lawyer who is licensed to practice in South Carolina), but I can tell you a few things as a general rule of thumb:
Many people are under the mistaken belief that “if they don’t give me them court papers first, the court is powerless to do anything to me”. Not true. Good faith, duly diligent efforts to effectuate service of process on you or at least—depending on the proceedings—notice to you is generally required before court action can be taken against you, but if, despite duly diligent efforts to locate you or chase you down to hand you “them court papers,” you cannot be found or served, there are other ways that a court will deem you to have been served and/or put on notice.
If you hide in an effort to evade service/notice, the court will take that into account and hold that against you. No one can game the system this way. When that happens, the court can order that service on you be accomplished through alternative means. Such as? For example:
the court could order that notice be mailed to your last known address (if you’re not there, that’s your problem, not the court’s);
the court could order that notice be given in the form of an email or text message (to your last-known email address or phone number; if the email address or phone number used is not an address or number you use anymore, that’s your problem, not the court’s);
the court could order that notice be given in the form of an instant message to an open social media account of yours (if you don’t use it anymore, but didn’t close it, that’s your problem, not the court’s);
courts could (as they did frequently in the past, but not so much nowadays) give notice by publishing a notice in the “legal notices”” section of the newspaper (kids, for those of you too young to know what a newspaper is, you can click here)
So if you think that avoiding service of process or closing your eyes and ears to notice is going to thwart the court or the opposing party, the joke’s on you.
If you think you don’t have to appear in court merely because you didn’t receive service of process or notice (or more accurately, did your darnedest to ensure you didn’t get service or notice), again, the joke’s on you.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Yes, the respondent gets one, as long as the respondent can be found so that he/she can be handed, mailed, or electronically provided with a copy. Indeed, if a respondent is not provided with a copy of the restraining order (or not deemed to have been served with a copy), it can be argued that the restraining order cannot be enforced against the respondent, or at least that the respondent cannot be punished for not complying with an order of which he/she had no notice. However, remember that there are two kinds of “notice”. Actual notice and constructive notice. With constructive notice, it is possible to be “deemed” to be on notice without having any personal possession or knowledge of the notice.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Why is the divorce rate so high in the United States?
Until now, I would answer this question by stating that some of the main reasons for the high divorce rate in the United States were a failure to understand the purpose of marriage and family, what a successful marriage and family demands of a couple and family members, and a culture that increasingly diminishes the importance of selflessness and service to one’s fellow man (both within and without the family unit).
There are statistics that indicate the divorce rate is falling in the United States, but not because more people are staying married, but because more people are simply forgoing marriage altogether (fewer divorces because there are fewer marriage to end in divorce). Why?
Well, in my opinion, it’s for the same reasons the divorce rate is so high and the following additional reasons: 1) government policies that both discourage marriage and incentivize remaining single and having children out of wedlock; 2) a culture that teaches girls and women that men are worthless, that marriage is tantamount to domestic slavery, and that women not only have no need for a man in their lives, but that having a man in their lives is a sign of weakness and a betrayal of the gains women have made in society and the workforce; and 3) obsolete alimony policy and laws that lead many men to conclude that marriage is not worth the risk, if a marriage ends in divorce.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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
If I’m married with a child (separated for 4 years), how do I get a divorce and establish a child support order, if I don’t know where my spouse is? (might not be in the same country)?
In Utah, where I practice divorce law, the process is as follows (it is likely similar in other jurisdictions too):
1. Prepare and file the complaint for divorce (and a few other initial required documents as part of the filing process) with the court (Utah Rules of Civil Procedure, Rule 3).
2. Make duly diligent efforts to locate your spouse you are suing for divorce. Check his/her last few last-known residential and work addresses and see if he/she is there. Check and see if he/she is staying with close family members or friends or at a boyfriend’s/girlfriend’s house. Try contacting him/her on his/her last few last-known telephone numbers and work and personal e-mail addresses he/she uses or has used in the past. Look on social media to see if that gives you any hints as to where he/she may be. Ask common friends and contacts of yours and your spouse if they know where to find your spouse. That’s a duly diligent search (Utah Rules of Civil Procedure, Rule 4(d)(5)(A)).
3. If, despite your duly diligent search, the whereabouts of your spouse are still unknown, if service is impracticable under the circumstances, or if there is good cause to believe that your spouse is avoiding service, you may file a motion to allow service by some other means. Your motion must include an affidavit or declaration describing your efforts to identify, locate, and serve your spouse, or the circumstances that make it impracticable to serve him/her. (Id.)
4. If the motion is granted, the court will order service of the complaint and summons by means reasonably calculated, under all the circumstances, to apprise your spouse of the action (Utah Rules of Civil Procedure, Rule 4(d)(5)(B)). What does “means reasonably calculated, under all the circumstances, to apprise” mean? Back when newspapers were so ubiquitous, it meant placing a notice in the “legal notices” section of a newspaper of general circulation in a county where your spouses was believed to be or likely to be, for 3–4 weeks. But now that far fewer people read newspapers, “means reasonably calculated to apprise” means still possibly the publication in the newspaper or a text message to the person’s last-known telephone number(s), an e-mail, a certified letter, or a post or instant message on social media, if your spouse has an active social media profile.
5. After you have filed proof of attempted alternate service with the court, if the time for publication has passed (usually at least 21 -30 days), and if your spouse has not filed a responsive pleading, he/she will be in default. You can then apply to the court for entry of default and for default judgment (Utah Rules of Civil Procedure, Rule 55 Default).
6. As long as your complaint for divorce is sworn or verified and contains all of the factual allegations and information that the court will either grant default judgment “on the pleadings” themselves or after a brief hearing in which you would appear before the court to provide the court with testimony and evidence to establish your claims.
7. If default judgment is granted, the court will either draft the documents needed to process your case to a close or ask you or your lawyer to prepare those documents: findings of fact and conclusions of law and a decree of divorce. If you sought an award of child support in your complaint for divorce and the court granted that request, your decree will contain provisions awarding you child support, along with the other relief you sought in your complaint.
And that’s it.*
* If, after entry of default against your spouse were to try to have his/her default and default judgment overturned (“set aside” is the language the court rules use), then if he/she can show the court good cause to set the default judgment aside, then it can set aside so that the case can be argued and decided on the merits of the case, instead of by default (Utah Rules of Civil Procedure, Rule 55(c)).
Utah Family Law, LC | divorceutah.com | 801-466-9277