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One of the very first things that new law students are taught is that a court cannot assert personal jurisdiction over a defendant unless that person has been given proper notice of the lawsuit through “service of process.” In layman’s terms, that means the court has no authority over someone being sued unless that person was given notice and the opportunity to participate in the lawsuit. That includes lawsuits for divorce, child custody, or other family law disputes. Service of process accomplishes the required notice and opportunity to participate.
Courts in Maryland and other jurisdictions have strict rules for service of process, or how to give proper notice of a lawsuit.
“Service of process” is the act of giving a person or entity being sued official notice of the lawsuit. Generally, this means providing them with a copy of the complaint and a court summons. The complaint is the document the other party (the plaintiff) filed to start the lawsuit. A summons is a document issued by the court that tells the person being sued that a lawsuit against them has been filed and informs them how and when they must respond to the lawsuit.
In Maryland, there are three (3) primary ways to achieve service of process in a divorce matter:
An adult over the age of 18 who is not involved in the case may hand the summons and complaint personally to the defendant at any location—their home, workplace, or even out in public. This adult can be a professional process server, a sheriff, or may be a friend or relative, but not the plaintiff.
An adult over the age of 18 may hand the summons and complaint to another adult living at the defendant’s home, so long as that adult actually lives in the home with the defendant. As with personal service, the person who makes service of process in this way may be a professional process server, a sheriff, a friend, or relative, but not the plaintiff or another person involved in the case.
The summons and complaint may be mailed to the defendant, ideally at their home, but there must be a return receipt (a green card provided by the post office) affixed to the envelope. In order to get the envelope, the defendant or another adult at their home must sign the receipt. Then they are given the envelope and the post office mails the signed receipt back to the sender. The plaintiff him- or herself may achieve service of process in this way without involving a process server or other adult.
It’s important to serve process in a timely fashion, or your divorce case could be dismissed and you would have to begin the entire process all over. You must generally serve the summons and complaint upon the other party within 60 days after the complaint was filed if the services to be achieved within the state of Maryland. There are different rules if you are serving someone outside of the state.
If you are getting close to this deadline and still have not been able to make service of process, you can ask the court to issue a second summons. However, you must do so before the original summons expires. If you still need more time to serve the other party, you will need to file a request with the judge.
In order to confirm to the court that the defendant has been properly served with a summons and complaint, the plaintiff must file an Affidavit of Service. An affidavit is a sworn statement describing how and when the defendant was served.
If the defendant was served by personal service or by substitute service at home, the person who served them must sign the affidavit. If the defendant was served by certified mail, return receipt requested, the person who sent the envelope must complete the affidavit with the green return receipt attached. Only once the Affidavit of Service is received by the court can the lawsuit proceed.
In some cases, a defendant moves to an unknown address before they can be served. In other cases, a defendant who does not want the divorce, custody, or other matter to move forward may deliberately avoid service of process—pretending not to be home, refusing to sign for mail, etc. A professional process server can sometimes overcome these challenges, but a court hearing may be required.
The courts require a plaintiff to make every reasonable effort to serve the defendant in their case. However, courts also understand that it is not always possible to effectively serve process through the methods described above if a defendant can’t be found or is resisting service. If a plaintiff’s efforts to serve process on a defendant are proven unsuccessful, alternate methods of service may be possible:
You can file a motion with the court to be allowed to serve the defendant by publishing a notice of the lawsuit in a newspaper. In Maryland, if the court grants your motion, you go to the Family Court Central Intake Center to arrange for publication.
The notice must be published in two local newspapers, once a week, for three weeks. If this is done, the defendant is considered to have been served even if they did not actually see the notice. Proof of service by publication is made by the newspapers sending documentation of the publication directly to the court.
Service by publication can be costly. Plaintiffs who cannot afford the expense of publication, such as those who have already been granted a fee waiver, can ask the court to allow them to serve the defendant by posting. If the court grants a motion for service by posting, the court clerk will post a notice of the lawsuit in the courthouse for 21 days and provide proof of this posting with the court.
As with service by publication, the defendant does not actually have to see the notice for service to be effective. The court clerk confirms the posting to the court and the plaintiff does not have to sign an Affidavit of Service.
Sometimes, if the Plaintiff files a formal motion with the court that outlines all efforts at achieving service of process, and reasons why these were unsuccessful, and proposes a different method of service aimed at achieving notice and opportunity to be heard, the court may allow still other means of “effectuating service.” These might include emails to known addresses for the defendant, mailing to known business addresses for the defendant, or any other means the court deems reasonably calculated to achieve service.
Any time you file a motion to ask the court to do something while a family law matter is ongoing, you must notify the other party of the motion and any hearing on the motion so that they will have a chance to respond. You can usually do this by regular first-class mail and then filing a Certificate of Service with the court.
However, if you need to serve the other party with a motion or pleading more than 60 days after a final order in the case, you must make service of process just as you would with a summons and complaint as described above.
If you have additional questions about the divorce service of process, or need to file a complaint or motion in a family law matter, contact Strickler, Platnick & Hatfield to schedule a consultation.
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