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PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

SERVICE OF PROCESS

Delivery of the statement of claim or other pleadings to those parties named in a court or other adversarial proceeding.

To execute a writ or process; as, to serve a writ of capias signifies to arrest a defendant under the process to serve a summons, is to deliver a copy of it at the house of the party, or to deliver it to him personally, or to read it to him; notices and other papers are served by delivering the same at the house of the party, or to him in person.

When the service of a writ is prevented by the act of the party on whom it is to be served, it will, in general, be sufficient if the officer does everything in his power to serve it.

A party to a lawsuit has the right to receive written notice that he is being sued or that a hearing will be held which might affect him in some way. Many rules have been developed to govern what notice needs to be given, and how and when it must be delivered. These are usually contained in court rules and rules of civil procedure.

Service of court papers (also referred to as service of process or service) is the delivery of court papers to a party, witness or other person who has a stake in the case. Every state has detailed laws spelling out just how the papers may be delivered, and by whom. When a person has been provided with formal notice of the filing of a lawsuit (that is, that he has been sued), of a court hearing or trial, or ordering him to attend a hearing, trial or deposition, he is said to have been served.

In most cases, the first papers that must be served are the summons and complaint. These documents give the defendant notice that the lawsuit has been filed and what the plaintiff is seeking (for example, a divorce). The court cannot proceed unless the plaintiff properly serves the defendant with these papers. There are five major types of service:

In most divorce cases, if a divorce is all that is being sought, service often can be made by mail or publication. If, however, alimony, child support, custody, visitation or a division of property is being sought in addition to the divorce itself, most states require personal service on the defendant. In either case, if the defendant's whereabouts are unknown, service by publication is often the only available method.

Once the defendant has been served with the summons and complaint, service of most subsequent court papers may be done by mailing them, without the need for an acknowledgment of service form. Some papers, however, such as contempt of court hearing notices and temporary restraining orders must still be formally served. The party being served, however, may voluntarily accept these papers.

After the defendant has been served, she usually files an answer or other response. She must serve this on the plaintiff, and usually can serve it by mail because the plaintiff, by initiating the lawsuit, has already appeared in the case and consented to the court's power to hear the case.

Service of court papers on a witness (for example, service of a notice telling the witness that his deposition has been scheduled), must usually be done personally; service by mail or publication is almost never sufficient.

The least expensive and most convenient way to satisfy the service requirement is for someone on behalf of the plaintiff to mail the summons and complaint to the defendant and ask her to sign, date and return a form acknowledging that she received them. This voluntary acceptance of court papers is called accepting service or acknowledgment of service, and saves the plaintiff from having to pay someone to locate and hand deliver the papers, which is otherwise required if the defendant doesn't cooperate. In some states, (the federal courts have a similar but more complicated procedure) the failure to accept service voluntarily makes the defendant responsible for the cost of service even if he otherwise wins the case.

It is important to note that proper service of the summons and complaint can be a very complicated matter and is often governed by the particular laws and rules of the courts and jurisdictions involved.

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