Ding Dong. Here’s Your Divorce Papers

In order to initiate a divorce or custody case in Nevada, you must serve the opposing party the divorce papers.  In the movies, you see someone ringing a door bell and then hands the unexpected spouse divorce papers. Or, maybe a man in a trench coat, shaking papers while he chases a spouse in their car.

A person being sued must be notified of the pending law suit.  The official name for this is “service of process”.   Without giving the other party proper notice of being sued in divorce court, or custody court, any judgment could be voided.

Avoiding divorce papers is nothing new.   And, with the rabid use of social media, we are starting to see courts allow for service of divorce papers through Facebook, and Twitter.   This article will discuss the requirements for service of process and the new issues being raised by social media.  .

What is “Service of Process”

“Process” consists of the court issuing a “summons”.  The summons is a piece of paper, signed by the judge or clerk, which tells a person they are being sued, and what they must do to respond to the complaint.   The complaint is the legal document explaining why you are suing someone else, and what you are requesting from the court.  The summons along with the complaint, makes up the documents being served.  

A summons and a copy of the complaint must be served upon the defendant personally, or by leaving it with someone at his or her permanent residence.  This is why it’s called “service of process”. Proof of proper service is required.  A process server will complete an affidavit, swearing under oath they served the papers.  If it appears there wasn’t proper service, the court will dismiss the case.

Any person starting a divorce action, or custody matter, is subject to the provisions of the Nevada rules of civil procedure relating to service of process.  Lawyers, and non-lawyers, must follow these court rules.

Avoiding Divorce Papers is Useless

Defendants will often refuse to touch the papers, or try to avoid service.   This is a dead end.  It doesn’t matter to the court.   The process server can testify they left the papers at the home or with the person.  They don’t need the person to accept the papers willingly.   

The summons and complaint can be served at a person’s home.  They can be left with anyone who resides there over the age of 18.  If the defendant, or a person eligible to receive service, refuses to take the papers, the process server can leave the papers at the front door.

A person can be served personally, anywhere.  They can be served at work, at a restaurant, or in a parking lot.  The process server, after ascertaining that this is the proper person, can simply drop the papers at the person’s feet, or place the papers under the windshield wipers as they drive away.

What if a Defendant is Deceitful

Suppose a wife knows she is going to be served papers in a divorce action, and wishes to avoid service. When the process server rings her door, and asks if she is the wife.  She denies it, and says the wife, has left the state.   The husband can request from the court to serve by publication and move forward with the divorce.   Later, the wife challenges the divorce for lack of service. Normally, her challenge will be rejected since she avoided service through deceitful means.

Serving Divorce Papers In Another State

What about a defendant who lives out of state?  Not much different than serving them in state.  You can serve them personally, or you can serve them at their residence.   We have even had situations where the defendant lives out of state and comes to Las Vegas for a vacation.  We find out which hotel they are staying at and serve them there.

The Wrong Person Was Served

Suppose the husband hires a process server to serve divorce papers on his wife. The process server is sloppy; he rings the bell at the wife’s residence, a woman answers, the process server assumes that she is the wife, and, without asking questions hands the woman the summons and complaint and leaves. In fact, the woman is not the wife but her sister who is visiting. Even if she subsequently hands the summons and complaint to the wife, the wife has not been served. The result is that the wife can challenge service when the divorce case comes before the court.    

Time Limit  

Under Nevada court rules, process must be served within 120 days of filing the complaint, or the action is liable to dismissal. The court may allow more time upon motion by the serving party.

Divorce by Newspaper, and Social Medial

An alternative method of service when the defendant is difficult to locate is “service by publication”. This rule explicitly extends service by publication to divorce actions. A statement explaining how normal service was tried, but was unsuccessful. The court will then allow the documents to be served by publishing them in a newspaper, once a week for four weeks. The courts are starting to expand the “service by publication” to alternative methods.  More courts are considering requests to serve divorce papers by Facebook, Twitter or email.  Newspapers are not read as much as they use to.   Social media, and emails are more likely to be noticed by a person than publishing in the newspaper.  

The other reasons behind the trend of Facebook, and Twitter is people can’t avoid the process.  You send them a message, and it’s delivered.   There is even screen shots proving you served it. They can’t be deceitful because you can tell if it’s there profile or not.   And, serving out-of-state is no harder than in-state.   The real question is when will a court allow you to serve by Facebook without attempting to use a process server?   Currently, you have to attempt the at-home service, and in-person service before you can ask the court to allow Facebook.   But, things may change quickly in this ever changing world.   

 

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