We’ve said it time and again – personal service is the absolute gold standard of process service. Personal service ensures that documents are securely delivered to the intended party and that each party’s right to due process is being upheld.
But, as in life, process service doesn’t always pan out as you expect. Sometimes you need to adjust your course of action and adapt. Just because you’re taking a different route, though, doesn’t mean that rules don’t apply. In fact, there are specific rules about how alternate service should be handled and it’s vital that you follow them.
When you don’t follow them, you risk the entire case falling apart. This is nowhere more evident than in a recent Wyoming Supreme Court case where the judges voided, reversed, and remanded a default divorce decree and instructed that the case be vacated.
How many times is the charm?
The divorcing couple, Cheryl and Charles Tarter, were separated and living in different states during their divorce process. (Michigan and Wyoming respectively.) A Michigan server failed to correctly serve Cheryle Tarter on five occasions. Her husband attempted to mail the divorce papers with no success and attempted to publish a legal notice in the local newspaper.
Following the attempts, a default decree was entered by the district courthouse. However, Cheryl Tarter appealed the decree. In her appeal, she argued that her ex-husband hadn’t complied with state publication requirements, nor did he send the papers to her known address in Michigan or provide a deadline for an answer.
The Wyoming Supreme Court sided by Cheryl Tater, highlighting that he hadn’t met the requirement to serve her papers in four different ways. Failure to comply with the rules on the matter means that the district courthouse didn’t have jurisdiction over the person who was supposed to be served and no judgment issued would be binding.
Know the rules, follow the rules
Had Charles Tarter and his counsel been aware of the strict rules surrounding what was required for service of process (and alternate service of process) to count, their case might have turned out differently. However, they aren’t alone in struggling to stay abreast of the legal requirements – process service laws can vary around the country. Here are a few notable examples from different states:
Alabama has detailed rules for service by publication. State statutes divide claims into two categories:
- A historically equitable claim involving property under the control of the court or a material status wherein the residence is unknown or the resident defender has been absent from their residence for more than 30 days since the filing of the complaint.
- A claim against a defendant avoiding service of process.
Before attempting service by publication, the claimant has to file an affidavit with the court stating that the service of summons or other processes cannot be made.
The process of service by publication in Missouri doesn’t vary wildly from many other states. You have to exhaust all means of locating the defendant. You have to get permission from the court. Not all newspapers are qualified.
However, a key detail to remember about service by publication in Missouri is this: If your case at all involves child support, service by publication may restrict you from collecting it. That’s a pretty important detail to remember!
Service by publication is a murky area in this southern state. In 1985, South Carolina adopted the law that process service required that the summons and the complaint to be delivered together. This isn’t such an issue when you’re talking about personal service, but it’s virtually impossible to accomplish this with service by publication. There has been case law that discusses the efficacy of this (or lack thereof), but the statute currently stands as is, making it an important consideration for anyone serving papers.
When handling cases of service by publication, it pays to pay attention to the letter of the law. At DGR, our process servers are experienced at navigating the variations in statutes across the country, helping our clients through all aspects of process service including alternate service. To learn more about how we approach each service, contact us today.