Under the U.S. and Texas constitutions, all people receive due process. Among due process is the opportunity for awareness of claims brought against you in a court of law. To satisfy due process, the federal and Texas rules of civil procedure require a party sued to receive service of process. Lawyers generally take care of this process for clients.
Process includes two documents: (1) a certified copy of the petition by the plaintiff (or petitioner in a family law proceeding) against a defendant (or respondent in a family law proceeding); and (2) citation that explains that he or she has been sued and when a response must be filed. The most common method is by personal service in which a process server hands process to the party.
Some people think by avoiding personal service they can avoid having to deal with the lawsuit.
They are wrong.
Introduction to Service of Process
Service of process is a fundamental aspect of the legal system, ensuring that all parties involved in a lawsuit are notified about the legal proceedings against them. It involves delivering official court documents, such as complaints or subpoenas, to the individuals or entities involved in the case.
The purpose of service of process is to guarantee that the defendant has knowledge of the lawsuit and an opportunity to respond. It upholds the principles of due process and ensures fairness in the legal system.
Evading service in a Texas divorce
The Texas Rules of Civil Procedure (and the federal rules) provide parties alternative means to serve a defendant or respondent. A party can receive service by certified mail with no special permission but that is usually a less effective approach. The person can refuse to accept the certified mail or claim that he or she never received it. Certified mail is usually the best way to serve a business or other entity rather than an individual person. It is difficult for the business to claim it did not receive certified mail when signed for by an employee. If personal service is not effective then a party should ask the court to give permission for alternative service.
Motion for substitute service in a Texas divorce
The civil procedure rules permit a party to file a motion for substitute service asking the court for an order permitting an alternative means of service. With this court order, the party can serve the defendant or respondent in an alternative method. That alternative method satisfies the due process rights in almost the same capacity as personal service.
The most common forms of substitute service granted by courts include service to any person over sixteen years of age in the house or attaching the process to the front door of the confirmed residence of the defendant or respondent. If the location of the defendant or respondent is unknown then it is common to serve the party by publication. That means publishing notice of the lawsuit in the newspaper of record for the county in which the party lives or believed to live. Other forms of substitute service are less common but effective, such as first class mail or a private freight carrier. Some parties have even had permission to serve electronically through email or Facebook.
Granting a motion for substitute service in a Texas divorce
A court will generally only grant a motion for substitute service when the plaintiff or petitioner presents the motion with an affidavit detailing attempts made to verify the address of the recipient and multiple attempts made to serve the party with process. The more attempts at the correct address at various days and times, the more likely the court grants the motion. For example, if attempts occur at 3pm to a party not home then it is less likely the judge approves substitute service. It could easily be that the party works a normal 8-5 job and would never be home to accept service. If service was attempted at different times then it is more likely that substitute service will be granted.
Consequences of Evading Service
- Legal Delays and Consequences: When an individual successfully evades service of process, it can cause significant delays in the legal proceedings. As a result, the plaintiff may face challenges in moving the case forward, potentially resulting in increased legal costs and prolonged litigation.
- Default Judgment: If a defendant evades service and fails to respond to the lawsuit within the designated time frame, the court may issue a default judgment in favor of the plaintiff. A default judgment is a legal ruling made in favor of the plaintiff when the defendant fails to participate in the case. This could lead to adverse consequences for the defendant, including financial liabilities or other legal ramifications.
- Alternative Methods of Service: In situations where the defendant is actively evading service, the court may allow alternative methods of service. These alternatives can include substituted service, where documents are served to another person of suitable age and discretion at the defendant’s residence or workplace. Additionally, service by publication may be permitted, involving publishing a notice in a local newspaper or other authorized publication.
The Role of Process Servers
Process servers play a crucial role in delivering legal documents and ensuring service of process is properly executed. They are individuals authorized by law to serve these documents and are well-versed in the legal requirements and procedures involved.
Process servers employ various strategies to locate individuals and successfully serve them with legal documents. They utilize their expertise, resources, and legal knowledge to navigate the challenges that may arise during the process.
Overcoming Challenges in Service of Process
To overcome the challenges posed by individuals evading service of process, plaintiffs can take certain steps to ensure effective delivery of legal documents:
- Utilizing Professional Process Servers: Hiring a reputable and experienced process server greatly increases the chances of successful service. These professionals have the knowledge and skills required to navigate challenging situations and locate evasive individuals.
- Documenting Service Attempts: It is crucial to maintain detailed records of all service attempts, including dates, times, locations, and any relevant observations. This documentation can serve as evidence in court to demonstrate the defendant’s evasion tactics.
- Seeking Court’s Assistance: In cases where traditional methods of service have been unsuccessful, plaintiffs can seek the court’s assistance. This can involve requesting alternative methods of service, as mentioned earlier, or obtaining court orders to facilitate service.
Conclusion
Evading service of process can complicate legal proceedings and lead to delays and potential consequences for the defendant. Understanding the legal implications and consequences associated with evading service is essential for both plaintiffs and defendants involved in a lawsuit.