When someone files for divorce, he or she is initiating a lawsuit against their own spouse who becomes the defendant. As a formal court action, this means that the divorce documents must be properly served upon the other spouse as specified under Michigan court rules. If divorce papers are not properly served, then the court proceedings may be dismissed.
When a divorce action is filed, the circuit court clerk will issue a summons that needs to be served with the complaint and other necessary paperwork. The summons will be directed to the other spouse requiring them to answer in a certain amount of time or else judgment may be entered against him or her. MCR 2.102(B). A summons will expire 91 days after it is issued. MCR 2.102(D). The summons and complaint must be served before the expiration date or else the divorce proceedings will be dismissed without prejudice. MCR 2.102(E)(1). “However, within those 91 days, on a showing of due diligence by the plaintiff in attempting to serve the original summons, the judge to whom the action is assigned may order a second summons to issue for a definite period not exceeding 1 year from the date the summons is issued.” MCR 2.102(D). The judge will extend the summons in cases where the other spouse appears to be evading proper service and the plaintiff made diligent efforts to provide legal notice.
Serving your spouse with the summons and complaint is not as easy as sending the papers to his or her last known address by first-class mail. The documents must be served in a manner specified by the Michigan Court Rules and the plaintiff must ensure that a proof of service form is filed with the court evidencing proper legal notice.
WHAT IS THE PROPER MANNER TO SERVE DIVORCE PAPERS?
The summons and complaint can be served by any legally competent adult (over age 18) who is NOT a party to the action. MCR 2.103(A). Spouses cannot serve each other with divorce papers personally.
There are two ways that a spouse can serve divorce papers in Michigan:
- Delivering a summons and a copy of the complaint to the other spouse personally through a non-party legally competent adult. MCR 2.105(A)(1).
- Sending a summons and a copy of the complaint by registered or certified mail, return receipt requested, and delivery restricted to the addressee. Service is made when the other spouse acknowledges receipt of the mail. A copy of the return receipt signed by the other spouse must be attached to proof showing service. MCR 2.105(A)(2).
If the other spouse cannot reasonably be served by either of the methods above, then the plaintiff can file an ex parte motion requesting that the court “permit service of process to be made in any other manner reasonably calculated to give the defendant actual notice of the proceedings and an opportunity to be heard.” MCR 2.105(J)(1). “The motion must set forth sufficient facts to show that process cannot be served [personally or by registered or certified mail] and must state the defendant’s address or last known address, or that no address of the defendant is known.” MCR 2.105(J)(2). “If the name or present address of the defendant is unknown, the moving party must set forth facts showing diligent inquiry to ascertain it.” Id. If the motion is granted, the court can order the other spouse to be served by giving the papers to a member of his or her household, sending the documents by first-class mail, tacking the documents to the other spouse’s door, posting the documents in several public places or even publishing the summons and complaint in the local newspaper (often the judge will order a combination of these to be completed to ensure actual notice).
When service of the divorce papers is complete, the plaintiff must ensure that a proof of service form is filed with the court. If the papers were served by a sheriff, deputy sheriff, bailiff, court officer or an attorney for the plaintiff, then that person who served must execute a certificate on the proof of service form stating the facts surrounding delivery of the papers, including the manner, time, date, and place of service. MCR 2.104(A)(2). If the papers were served by any other competent adult (other than a party), then that person must fill out the manner, time, date, and place of service, and indicate the process server’s official capacity, if any, on the proof of service form signed before a notary public. MCR 2.104(A)(3). The proof of service form should be filed with the court as soon as possible.
However, in more amicable divorcing situations, the other spouse may be willing to accept the divorce papers to move the process along. The other spouse can execute a written acknowledgment of the receipt of a summons and a copy of the complaint by dating and signing the “Acknowledgment of Service” portion of the proof of service form. MCR 2.104(A)(1).
If the plaintiff is advised by the court that he or she did not serve the other spouse by proper means, then he or she should try again as soon as possible using the correct manner. “An action shall not be dismissed for improper service of process unless the service failed to inform the defendant of the action within the time provided in [the Michigan Court Rules].” MCR 2.105(K)(3).
WHAT SHOULD THE OTHER SPOUSE DO AFTER BEING SERVED WITH DIVORCE PAPERS?
If you have been served with divorce papers, you should act quickly to properly respond to the documents. The amount of time that you have to file an answer depends on the manner in which you were served:
- “A defendant must serve and file an answer or take other action permitted by law or these rules within 21 days after being served with the summons and a copy of the complaint in Michigan [by personal service].” MCR 2.108(A)(1).
- “If service of the summons and a copy of the complaint is made outside Michigan, or if the manner of service used requires the summons and a copy of the complaint to be sent by registered mail addressed to the defendant, the defendant must serve and file an answer or take other action permitted by law or these rules within 28 days after service.” MCR 2.108(A)(2).
- If service was to be accomplished by posting or publication as ordered by the judge, the court can allow for some other reasonable time for the defendant to answer no less than 28 days. MCR 2.108(A)(3).
If a party to a lawsuit (including a divorce proceeding) fails to plead or defend against the legal action according to court rules, then the clerk can enter a default against that party. MCR 2.603(A)(1). After the notice of default has been entered and served, the plaintiff can move to have a default judgment entered with the terms and conditions favorable to him or her (provided that the statutory waiting periods have passed). MCR 2.603(B). Once a default judgment has been entered by the court, it becomes final with the property division and child custody issues resolved in favor of the plaintiff. The other spouse could file a motion to have a default judgment set aside if good cause and a statement of facts showing a meritorious defense is shown (provide it is filed before entry of default judgment or within 21 days of entry). MCR 2.603(D).
If the judge does not set aside the default judgment, the spouse who sat on his or her rights will have to live with the outcome forever. Although child custody, parenting time and child support can always be revisited, the property settlement cannot be changed unless the other spouse stipulates to it.
THE RULES FOR GETTING DIVORCED ARE COMPLICATED BUT A SKILLED FAMILY LAW LAWYER CAN HELP
If you retain a law firm to assist you with filing for divorce, then they can ensure that the documents are served on the other spouse according to law. Likewise, if you are served with divorce papers, then you should contact a lawyer immediately to help protect your rights and avoid a default judgment being entered against you. You only get one opportunity to do your divorce correctly, so get the best legal representation in your corner from the very beginning.
If you have further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.