Avoiding Service

Avoiding the service of legal documents is a common issue that can arise during legal proceedings, especially in divorce cases. When one party attempts to avoid receiving critical legal documents, it can cause significant delays and complications in the legal process. However, it is important to note that despite these attempts to evade service, the legal process continues and there are established procedures in place to ensure that service can still be completed.

Why Service of Legal Documents is Crucial

The service of legal documents is an essential part of any legal process, and in divorce cases, it is no exception. The primary purpose of serving documents is to inform the other party (the Respondent) of the legal action that has been taken against them. In the context of a divorce application, this means notifying the Respondent that the Applicant is seeking a divorce, and that they must respond accordingly, either by consenting or disputing the divorce, and addressing issues such as child custody, property division, and financial support if applicable.

Proper service ensures that both parties are aware of the proceedings and are given a fair opportunity to respond. The legal system is built on the principle of fairness and ensuring that both parties are equally informed, which is why service is a critical requirement. If the Respondent is not properly served with the divorce application, the Court may not proceed with the case until proper service has been made. This can lead to delays, additional costs, and potential complications.

Common Tactics for Avoiding Service

When a Respondent seeks to avoid being served with divorce documents, they may employ several tactics. These include:

1. Refusing to Accept the Documents: One of the most straightforward ways to avoid service is for the Respondent to simply refuse to accept the documents when they are presented. This could mean refusing to sign the acknowledgment of service or physically ignoring the person attempting to serve them. In some cases, the Respondent might even slam the door or take other evasive action to avoid receiving the documents.

2. Not Being Home: In other cases, the Respondent may avoid service by intentionally not being home when a process server or the Applicant attempts to deliver the documents. If the process server is unable to find the Respondent at their address, this can lead to delays in the legal process.

3. Changing Address or Contact Information: Some individuals may attempt to avoid service by moving to a new address or deliberately changing their phone number or email address. This tactic can be effective if the Applicant is not aware of the new contact details, but it does not stop the legal process from continuing.

4. Becoming Unavailable: In some situations, the Respondent may make themselves unavailable or difficult to contact, thereby making it hard for the Applicant to serve the documents. They may not answer their phone, refuse to respond to letters, or avoid all communication regarding the legal matter.

While these tactics may cause delays and frustration, it is important to understand that avoiding service does not stop the legal process. The Court has mechanisms in place to address this issue and ensure that the Applicant can still fulfill their obligation to serve the divorce documents.

Steps to Take When Service is Avoided

When the Respondent is avoiding service, the Applicant must take specific steps to ensure that the documents are delivered and the legal process can proceed. The following are some of the most common and effective solutions available:

1. Hiring a Professional Process Server

One of the most effective methods of serving legal documents when the Respondent is avoiding service is to hire a professional process server. A process server is an individual who specializes in delivering legal documents to the intended recipient. These professionals are trained and experienced in tracking down individuals who are deliberately trying to avoid service. They have the knowledge and resources to find the Respondent, even if they are trying to evade being served.

Process servers know the laws surrounding the service of legal documents, and they will ensure that service is carried out properly. They will make multiple attempts to serve the documents and, in many cases, will have access to databases and other tools that allow them to locate individuals who may be difficult to find. They will also ensure that the service complies with all legal requirements, such as providing proof of service, which is crucial for the case to proceed.

2. Substituted Service

If the Respondent cannot be personally served despite multiple attempts, the Applicant may apply to the Court for “substituted service.” Substituted service allows the documents to be served in an alternative manner, such as through mail, email, or by leaving them at the Respondent’s last known address or place of employment. Substituted service is often used when personal service is not possible despite reasonable efforts.

To request substituted service, the Applicant must file an application with the Court, explaining the steps that have been taken to attempt personal service. This includes details of all attempts to serve the documents, including dates, times, and the methods used. The Applicant must demonstrate that further attempts to serve the Respondent directly would be futile. The Court will review the request for substituted service and determine whether it is appropriate in the circumstances.

If granted, the Court will issue an order outlining the method of substituted service. This may include sending the documents via post, email, or even publishing a notice in a local newspaper if the Respondent’s whereabouts are unknown. Once substituted service has been completed, the Applicant must file proof of service with the Court.

3. Dispensation from Service

In rare cases, when the Respondent’s whereabouts are completely unknown or when personal service is impossible, the Court may grant dispensation from service. Dispensation from service means that the Applicant does not have to serve the Respondent in the usual manner. This option is typically used when the Respondent has disappeared, or when there is compelling evidence that all reasonable efforts to locate and serve the Respondent have been exhausted.

To request dispensation from service, the Applicant must provide evidence to the Court that personal service is impossible, and they must show that other methods, such as substituted service or service by publication, have been unsuccessful. The Court will consider the application carefully before granting dispensation, as this is considered an extraordinary remedy.

4. Service by Publication

In situations where all other methods of service have failed, the Court may allow service by publication. This involves publishing a notice of the legal action in a widely read newspaper or other publication. Service by publication is typically used when the Respondent’s whereabouts are completely unknown, and all efforts to locate them have been unsuccessful.

To apply for service by publication, the Applicant must demonstrate to the Court that all other attempts to serve the Respondent have been exhausted. The Court will review the application and determine whether service by publication is appropriate. If granted, the Applicant must publish a notice in a newspaper or publication that is likely to reach the Respondent, and provide proof of the publication to the Court.

Conclusion

Avoiding the service of legal documents can be a frustrating challenge in divorce cases, but it does not prevent the legal process from moving forward. Courts have established clear procedures to ensure that Applicants can still fulfill their obligation to serve documents, even when the Respondent is deliberately evading service. By hiring a process server, applying for substituted service, requesting dispensation from service, or using service by publication as a last resort, the Applicant can ensure that the legal process continues.

If you are facing challenges in serving legal documents in your divorce case, it is essential to consult with a legal professional who can advise you on the best course of action. Understanding your options for service and following the proper legal procedures will help you avoid unnecessary delays and move forward with your divorce proceedings in a timely manner.