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Contesting Service Of Process In Florida

Family4

One of the key components of filing a complaint for divorce, custody, or even a modification is also serving the defendant or respondent in the case with a copy of the pleading you file with the court of jurisdiction. A pleading is a legal document filed with the court asking the court to do something or grant something. For example, a complaint for absolute divorce is a pleading asking the court to grant a divorce and usually decide on matters related to property disposition or custody of minor children. If a plaintiff files a complaint with the circuit court, she must also file a certificate of service, affirming that the defendant named in the case was served with the complaint as well. Oftentimes service of process is completed incorrectly or the defendant is never notified of the lawsuit and is not afforded an opportunity to represent themselves in court. 

Correctly Serving the Defendant in Family Law Cases 

Plaintiffs in family law cases have two means for serving defendants. They can serve the defendant using the personal service method, or by certified mail. The plaintiff cannot serve the defendant themselves in person. Improper service would be a plaintiff spouse showing up at the defendant’s spouse doorstep with a divorce complaint in hand. Rather, the plaintiff needs to either pay for a private process server to hand deliver the complaint to the defendant or they can also use the process by the sheriff’s office. In that case, a deputy or officer from the sheriff’s department where the defendant is located will attempt service on the defendant.

The plaintiff must complete their summons and a Process Service Memorandum. They take both those documents along with pleadings (like a complaint) to be filed with the Clerk of Court. The Clerk will accept the filings and sign the summons, at which point the Process Service Memorandum should be served on the defendant.  Once service is complete (either by private process or certified mail), the person who served the defendant must complete a proof of service form and file that with the court. If you hire a private process server, they usually will handle that step themselves, or you can ask them to deliver the completed proof of service form to you for filing. Because there are many steps involved, and missing one can severely delay your case or even get it dismissed, you may want to consult with an experienced attorney before filing. 

When Service of Process is Contested

If the defendant is contesting service of process, it can be for several reasons. However, a defendant cannot simply ignore a summons or deny their identity to a private process server. Often defendants in civil cases or even family law cases will attempt to dodge a process server, refuse to answer the front door or send someone else out if they think service is trying to be made on them. They do not have to physically take the documents from the process server or sheriff, as long as they are notified and the documents are placed at their feet. But, a process server cannot simply leave documents at the home or with an unsupervised minor. In that case, the defendant may be able to contest  that service was not proper. In addition, obviously if forms are mailed to the wrong address or  previous address, this would not constitute service.

If the other party cannot be located, and you have made multiple attempts to find them or a suitable address to serve them, you can file a service by publication, also referred to as constructive notice. A notice of service is published in the mail or local newspaper for at least a week, and the plaintiff must also file an Affidavit of Diligent Search and Inquiry. The court can only grant limited relief, however if service is made constructively. If after 60 days the defendant has still not responded to the suit despite attempts at service, the plaintiff can file a motion for order of default in their case. This allows the court to unilaterally grant the plaintiff relief because the defendant did not respond in time to contest the allegations or demands for relief in the complaint. 

Contact Our Family Law Attorneys at Bubley & Bubley, P.A. 

Family law is complicated. Civil procedure and proper service must be followed to the letter. Failing to file a pleading, effectuate service or send copies of filed documents to the defendant can result in serious delays to a lawsuit. In some cases, a lawsuit can even be dismissed if service was not made on the defendant. Plaintiffs are also not excused from following procedure rules because they are ignorant of them. If you have questions about the progression of a family law case or how to file a complaint, or you need help with a post-divorce modification, contact our Tampa family attorneys at Bubley & Bubley for a consultation.

Resource:

flcourts.org/content/download/685851/file_pdf/913a2.pdf

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