What is the Service of Process? What do I serve?
You have just completed your family case summons and petition. You have painstakingly reviewed your affidavits and assets and have made sure you’ve disclosed all you need to and clarified what you are requesting from the court. You show up at court to file your documents and pay the filing fees and the first question the clerk asks is: “Where is the affidavit of service?” What? What affidavit?
A proceeding for marriage dissolution, legal separation, or annulment is commenced by the service of a summons and petition upon the person (i.e. hand delivered to the person) of the other party according to Minnesota law. The summons is a form approved by law makers and provided free of charge to the public to use in initiating a petition for dissolution/divorce. A summons notifies the parties of what they must and must not do once the case is initiated. It also includes a notice of alternate dispute resolution provisions available to the parties. A copy of a dissolution summons can be found at: http://www.mncourts.gov/default.aspx?page=513&item=259&itemType=formDetails
If a proceeding is started by filing a joint petition with the other party (also known as the joint petitioner), signed by both sides, a summons is not required. The proceeding is deemed to have started when both parties sign and file the joint petition with the court.
How Do I Serve?
In a proceeding that is not a joint petition, service of a summons and petition is required to be made personally. Personal service or personal delivery can be made on the other party (also known as the respondent) either within or without the state or even in a foreign country. If personal service cannot be made, the court can order service of the summons by alternate means, including by mail or publication in a newspaper. After the court orders service by alternate means, if the respondent is subsequently located, before service is completed, personal service must be made before the final hearing.
The Affidavit of Service
Once service is made, either via personal service or service by mail, the person effectuating the service, which must be someone other than the person petitioning the court, must sign a sworn statement or affidavit before a notary proving that they have effectively served the respondent either by mail or by personal delivery. This affidavit or sworn statement of delivery is known as the Affidavit of Service. A copy of an Affidavit of Service form can be found at: http://www.mncourts.gov/default.aspx?page=513&item=470&itemType=formDetails
The Application to Serve by Alternate Means
The petitioner must first attempt to serve the summons personally and if service cannot be made personally, then the petitioner can apply to the court for permission to serve by alternate means (i.e. by mail or publication). The application for service by alternate means must include information about the respondent’s last known location, attempts by the petitioner to find the respondent, etc.
If the petitioner provides a forwarding address for respondent in the application, the court will order service by first class mail to that address where there is a reasonable possibility that mail or information will be forwarded or communicated to the respondent. If no address is provided, then the court will order service by mail to the respondent’s last known address. The court may also order publication, in or out of the state or country, but only if it might reasonably succeed in notifying the respondent of the proceeding. This means that the court may also order service by publication on a nonresident defendant/respondent living in a foreign country at an unknown address.
In addition, the court may also require the petitioner to make further efforts to locate the respondent through telephone calls to appropriate persons or via other means. Service is deemed complete twenty-one days after mailing or twenty-one days after court-ordered publication. More information about the Application to Serve Summons by Alternate means including a copy of the form and a sample Order to Serve by Alternate means can be found at: http://www.mncourts.gov/default.aspx?page=513&item=92&itemType=packetDetails
If the petitioner wants the court to help dispose of real estate located within the state of Minnesota, the court shall order that the summons, which shall contain the legal description of the real estate, be published in the county where the real estate is located.
If you have questions about the Service of Process or any other issues in this article, utilize the Family Court Self-Help centers for your county or contact an experienced family law attorney. Consult a family lawyer to determine what process is relevant to your particular case or situation or for any of the issues raised in this article.
Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in family law.