Problems with Service of Summons and Complaint for Divorce

In practice, upon the filing of a Complaint for Divorce, Modification, etc., and our receipt from the court of the original Summons, we often effectuate service of Summons and Complaint on the opposing party by mailing the original Summons, with a copy of the Complaint and the Track Assignment Notice, to the opposing party’s attorney. This way the opposing party, in the privacy of his or her attorney’s office, can sign the Acceptance of Service paragraph of the Summons before a Notary Public. This formally puts the Defendant on notice of the filing of the Plaintiff’s lawsuit. It satisfies the requirement that the Plaintiff serve the Defendant with notice. But it also eliminates the embarrassment of a Process Server, Constable or Deputy Sheriff having to formally serve the opposing party in person, at work, in the presence of strangers, etc. Problems can arise, however, if there is a delay in opposing counsel having the opposing party come into his or her office to sign the Acceptance of Service paragraph of the original Summons, especially in cases involving a Complaint for Divorce.

Because the Automatic Restraining Order under Supplemental Probate and Family Court Rule 411 becomes effective with respect to the Defendant upon service of the Summons and Complaint, any delay by opposing counsel in signing the Summons to indicate “acceptance” could result in the opposing party engaging in prohibited financial actions without being in violation of Rule 411, while the Plaintiff is restrained from engaging in the very same actions. Note the Defendant becomes subject to Rule 411 upon service – the Plaintiff becomes subject to the rule upon filing the Complaint for Divorce with the court.

One way to avoid problems with service of Summons and Complaint for Divorce is to confirm with opposing counsel prior to engaging in this “friendly” process that his or her client will become subject to the Automatic Restraining Order immediately upon the opposing counsel’s receipt of the original Summons and copy of the Complaint for Divorce.


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