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Posted on in Divorce


Service of Process

When a divorce case is initially filed, the filing party (Petitioner) must provide the other spouse (Respondent) with notice. This is called the Service of Process. Once the other spouse has proper notice the clock starts ticking.

The proper notice consists of serving the Respondent with a Summons and a copy of the Petition for Dissolution of Marriage. A Summons is an official notice to the Respondent that a legal proceeding has been filed against them. The Summons states what type of proceeding has been filed and it explains that the Respondent is required to file a written appearance and response in the Circuit Clerk’s Office within a certain number of days- typically thirty (30).

The Sheriff’s Department or a private process server will usually serve the notice on the Respondent. It is common to attempt service where the Respondent resides or at their place of employment. Service of process is completed when the server hands the Respondent the Summons and Petition but it can also be completed when they hand the documents to someone who lives in the Respondent’s home, as long as the recipient is over the age of thirteen (13). We see this happen often when the Respondent no longer resides in the marital residence with the Petitioner. There are other ways to complete service besides what is mentioned above, so think twice before attempting to evade service.

Avoiding Default

It is important that you file your appearance by the deadline stated in the Summons so that the Court knows you are participating in the proceedings. The Petitioner will receive a notice once you are served and an affidavit of service will be filed with the court, so your judge will know too. Do not ignore the fact that you have been served. If you do not file your appearance by the deadline then the Petitioner will be able to motion the Court for relief by asking for the entry of a Default Judgment. A judgment entered by default does not take into consideration your position. By not participating in the proceeding it is likely that the Petitioner will receive exactly what they asked for. A default judgment will likely put certain obligations on you and without defending yourself those obligations could be unfair.

Although there may be a way to vacate a Default Judgment after its entry, it is highly recommended that you avoid getting yourself in that position in the first place. It would be in the Judge’s discretion to vacate the Default Order. The Judge would only vacate the Default Order if they determined that the circumstances justified vacating the order. Judges do not take too kindly to Respondents who ignore court proceedings without a valid defense. This is not a situation you want to be in and it can be avoided by simply filing your appearance in a timely manner. Be proactive and protect yourself.

It is easy to get your Appearance on file. Even if you plan to retain an attorney it is usually wise to get your Appearance on file right away. Your attorney can file a supplemental appearance once they are retained. If you need more time to file your Response or to obtain an attorney, you can ask the Judge for that additional time.

Getting your appearance on file is the first step in protecting yourself when a court case has been filed against you. After that, you will need to file your Response and possibly a counter-petition against the party who originally filed. That way the court understands your position and is aware of other facts the Petitioner may have left out.

Once you have your appearance and response filed with the court, you need to pay attention to your court dates and any other deadlines in your case. You need to participate in the matter at all stages. Although default judgments typically occur when a Respondent ignores the original notice after being served, a default judgment can also occur when a Respondent stops participating in the case.

If you have been served with a Petition for Dissolution of Marriage, the experienced attorneys at Anderson & Associates, P.C. are available to answer your questions and to provide legal advice. Call now for a consultation with one of our knowledgeable attorneys and ensure your rights are protected. 



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