Service of Process

That's a boring title.  Generally speaking, the subject matter is not much more thrilling.  But it is critical. It is essential.  It is the threshold issue to making a law suit a law suit.

The attorney can craft the most brilliant complaint every written, every cause of action spelled out to a "t," every fact intricately woven into the story capped by an ad damnum that brings tears to the Judge's eyes, but if you can't get the defendant served, you haven't got squat.

Service of process is about due process.  It is a fundamental, constitutional issue.  It is how the court becomes satisfied that the person you are suing has enough notice that he is being sued that you can get a judgment against him should he have the bad judgment to not respond to your complaint. If you get Service of the Process (the Complaint and Summons) then you get the defendant.  If you don't get Service of the Process then you are indeed tilting at windmills.  You have whole cloth and nothing more.

Different states have different rules about what constitutes Service of Process.  Some states allow Service of Process by First Class, United States Mail.  "Yeah, Judge.  I mailed it to her.  She knows to be here."  "Okay, sir.  I grant you the house, the cars, the kids and her bank account."  I don't think so.

I like Georgia's rules best because they provide the most likely guarantee that the Defendant has notice of the action.  Georgia requires personal service in most instances.  This means that the Defendant himself is actually handed the Process.  And not just handed the Process by any Tom, Dick or Harry, but by someone appointed by the Court to Serve Process.  This almost always is either a Sheriff's Deputy or a Private Process Server who has been specifically appointed by the Court to accomplish that result.

So, Service of Process is key.  Now on to the next issue.

Some Defendants like to hide out from Service of Process.  They play hard to get.  They figure if they lay low, the Plaintiff will just give up.  But why would the Plaintiff ever give up?  If it is a waiting game, Defendant is just forestalling the inevitable.  Like a fugitive, Defendant becomes a wanted man, hunted constantly, forever having to look over his shoulder for that outstretched arm with folded papers.  "Here you go, sir."  Will it happen at home, at 3:00 in the morning?  Will it happen at work during a critical staff meeting with the boss looking on?  Will it happen on a date just as the waiter pours the wine?  Will it happen at church just as the preacher calls for all sinners to come forth?  It's all over and all of Defendant's efforts were for naught.  Further, Defendant's shenanigans will cost him because the additional cost borne by Plaintiff to perfect service will be item number one when fees and expenses are sought.  "Good hiding, sir.  It took three extra months and $500 extra dollars to find you.  Now pay an additional $500 to Plaintiff over there."  I don't care who you are; I don't care what you do. I will find you, somewhere, somehow, some time.  The Process Server Man does not rest.

So, there is no point in hiding.  Now on to the next issue.

Sometimes the defendant is not in the state.  Maybe they are in the next state over.  Maybe they are in the next continent over.  However, each jurisdiction, whether it is Alabama or Albania has its own rules about Service of Process.  The States of the United States have agreements between them about Service of Process across State lines.  Member Nations have treaties between them on these issues.  Even if the defendant is holed up in a non member nation, if service is perfected by the rules of the plaintiff's jurisdiction, the Service will be recognized and the defendant will either have to show up for court or lose all.  "Would you like a vacation in Nigeria, Mr. Process Server?"

The point here is that there is a way to perfect Service anywhere on this globe.  We were recently asked how to perfect service in Afghanistan on a military contractor.  True, the agencies to perfect service there are spotty and unreliable and it is hard to pay a Georgia process server to place life and limb in war-torn peril.  Not much of a vacation there.  But then there is leverage.  Neither the military nor the State Department want any more glitches than they already have.  And having a defendant avoiding Service of Process and not taking care of his children is a serious public relations glitch the government would love to avoid.  So you perfect service by having the defendant put in a position where he either Acknowledges Service or is sent home by the government, never to return.  In reality, the State Department is filed with good people.  The State Department doesn't want dead beats who don't care for their kids avoiding their responsibilities by hiding behind the State Department's coat-tails. You can find these dead beats.  You can get these dead beats.

So, there is no where to run, no where to hide.

Later on I'll write about tracking down the dead beats.  There are great people who do just that.  For many of them, it is their passion.  But for now just know, if you've got an idea about where the dead beats are, you can Serve them.  You can have your day in Court.

Game On!

Michael Manely
http://www.allfamilylaw.com/PracticeAreas/Divorce.asp

"Sweetheart, I want a divorce."

Sonnets have been written and movies have been made over the fateful issue of how do you pop the question, the one that ends with, "will you marry me?"

But I haven't seen any treatment in prose or film that tackles the stickier subject of popping the question of divorce.  There are songs about divorce, D-I-V-O-R-C-E, by Tammy Wynette, being one of my favorites, but I can't recall any about broaching the subject, unless you count Earl by the Dixie Chicks.

I deal with this issue several times each week.  Potential clients schedule a consultation to learn about the law of divorce and how it applies to their situation.  Fairly often the subject of divorce has not been broached in a serious, "this is it," way, though perhaps it has been bandied about as an ongoing threat by one side or the other.

So how do you tell your spouse that you want out, the deal's off, you are escaping, you want your freedom, hasta la vista, baby?  (Another dark reference.)

The best practice is to plan for a time when you can have your spouse alone for at least an hour, free of interruptions.  Have your outline ready, what you need to discuss, what you need out of the divorce: custody, child support, division of assets, division of debts, separation of property, etc.  Predict your spouse's reaction.  Plan how you will manage it.  Say a prayer, light a candle or have a stiff drink, whatever helps your resolve, and dive in.

The big down side to this strategy is that if you and your spouse could speak this openly, it is far less likely you would be getting a divorce in the first place.  Still, some couples are mutually far enough along to manage a productive conversation.  In most cases, however, only one side is far enough along.  The other side seems to be trapped in a paleolithic mode.

If you are vulnerable, financially, physically, even emotionally, the best practice approach will not apply to you.  You already have experienced your spouse engaging in some form of extortion.  "If you don't do what I say, I'll hurt you (financially, physically, emotionally). "  If this is your situation, you have to plan your exit strategy without consulting your spouse because if you let him or her know about your plans, they'll make you pay for it.

If your spouse is likely to see your honesty as a weakness, giving him or her a head start on filing for divorce  and gathering evidence for court, then this best practice approach cannot apply to you either, because the conversation will not be equal and will not be productive.  Again, your spouse will make you pay.

At least half the time I recommend that my client have a generic conversation about divorce with their spouse.  Finding the right time is the key.  Some event has to be the catalyst so that divorce just comes up in the conversation.  But use that event to explore your spouse's reaction and thoughts.  Your spouse's response will speak volumes of whether you can set up the best practice meeting or whether you have to protect yourself by moving clandestinely.

Unfortunately, quite often the opposing party's conduct and attitudes requires the clandestine approach. In that case, we prepare the divorce complaint, the divorce is filed and process is served by a plain clothes process server.  The service of process is the first time the opposing party learns of the once impending, now pending divorce.  And by the time that process is served, we have constructed the protections you need.

Invariably, when process is served, the opposing party is shocked. "How could you do this to me?"  This  attitude will floor you because not only has the handwriting long been on the wall but it is written in bold, underlined and highlighted in fluorescent yellow!  Still, the opposing party pretends that the divorce is out of left field.

So how do you ask for a divorce?  Do you kill your spouse with kindness? "Sweetheart, you know I love you and think the world of you but this is just not working out for us.  I think we need permanent, separate vacations."  Or do you let your actions speak louder than your words ever could?

Bottom line?  When it gets real, get help.  Ask a professional.  That's what we're here for.

Michael Manely