Home > divorce, divorce modification, family law general, law general, paternity/child custody > Civil Procedure in Divorce/Child Custody Part 2–the Summons

Civil Procedure in Divorce/Child Custody Part 2–the Summons

* Note:  This is another Utah specific article, however, ALL court actions require that parties’ be served with process no matter what state you’re in.  The rules may be different, though, so make sure and check your own states Rules of Civil Procedure.

A Summons is how you really get the ball rolling in your court action.  Because while you might technically “start” your case by filing a complaint or petition, nothing is going to happen until the opposing party has been served with process.  A person’s right to due process under the law is a constitutional one–you can find it as the 5th amendment, within the Bill of Rights.  Amendment 14 goes on to also discuss one’s right to equal protection under the law and apply it to the states (so it’s not just a right in federal actions), which includes the right to receive notice of a court action filed against him/her.

5th amendment due process

The Supreme Court went on to apply Fifth Amendment due process requirements to civil actions within Boddie v. Connecticut, a divorce case.

 

I talked in a previous blog post about certificates of service, and mentioned summonses very briefly then.  Rules regarding the Summons are found (in Utah) at Utah Rules of Civil Procedure (URCP) Rules 4 and 12.  URCP Rule 4 specifically discusses what needs to be included in the Summons document.  Rule 12 states how much time a defendant/Respondent has to respond to the complaint with an Answer.

A Summons must:

“contain the name of the court, the address of the court, the names of the parties to the action, and the county in which it is brought. It shall be directed to the defendant, state the name, address and telephone number of the plaintiff’s attorney, if any, and otherwise the plaintiff’s address and telephone number. It shall state the time within which the defendant is required to answer the complaint in writing, and shall notify the defendant that in case of failure to do so, judgment by default will be rendered against the defendant. It shall state either that the complaint is on file with the court or that the complaint will be filed with the court within ten days of service.” Utah RCP 4(c)(1)

Forms that you’ll need to serve someone with process in a court action can be found at the Utah Courts website.  Detailed instructions are also there.

You CAN draft up your own forms if you choose to.  The ones from the state’s courts website include check boxes for ALL types of process service, which you wouldn’t actually need in every case.  It doesn’t really make a difference whether you use the state’s forms or not, so long as you have all the correct language in yours.

Served

I don’t know how they do it, but somehow process servers WILL find you…

It’s common to have the sheriff’s office serve the other party with process.  They are *usually* the cheapest option (though not always…you’ll want to look into that), and sometimes the ONLY option.  You may also have the option of hiring a private process server to handle it.  There are times when one or the other may be more appropriate.  If you’re dealing with a person on the other side who may be violent, probably go with the sheriff’s office.  That said, having the sheriff show up at one’s home or workplace DOES have a tendency to either embarrass the person or just piss them off.  Your call on that.  I always prefer to keep these things as low-key as possible for the sake of retaining everyone’s ability to be reasonable going forward.

Reasonable

…because the court is going to expect everyone to be reasonable, whether they are or not.

You can also have a third party, who is not an official process server, who is over the age of 18, and who is NOT one of the parties to the case serve process.  There’s a form on the courts website you can use for return of service in a case like that.  (But good luck finding a mutual friend who wants to get involved in your divorce by doing that for you…)

The final option, and the method we all hope we can use for the sake of simplicity, is having the other party accept service.  There are two types of acceptance of service:  1) Acceptance, Waiver of Service & Default–this is when the other side is fine with whatever the Petitioner ask for in the petition, and is fine with the court just entering a default against them.  The upshot is the divorce (or whatever) can go through more quickly.  The other type: 2) Acceptance of Service.  Just that.  It states that the person has received the documents, and accepts service of the documents without a process server having to serve them, and that they know they have 21 days to respond (though if the person accepting service demands it, he/she can get 45 days to respond under the Rules…See the link below).  It does NOT mean that the court will default you–just that the Petitioner doesn’t have to go through the process of having you served officially by a third party.  (There are specific rules regarding this as well, that you can find here, at subpart f.)

You have 120 days after you file a complaint/petition to have the other party served.  After that, the court will dismiss the action.  You can bring it again, but you have to start over with the filing fee and all–as though you’d never done it before.  (You can also have someone served with process BEFORE you file your complaint, but in that case you have to have it filed within 10 days of serving the other party.)

So there you have it…Summonses in a nutshell, and a bit about service of process.  Don’t forget what your goal is in this whole thing–As amicable a case as possible.  And that starts with reasonable service of process.  Scorched Earth method not required.

Burning down the house

Not exactly the best way to get the other party to be reasonable…

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