Divorce Law Monitor

Serving Papers: The Start of a Case

May 3, 2022


“You’ve been served.” But what does that actually mean? The service of court papers (referred to as “service” throughout this post) has been a hot topic in the news recently as Jason Sudeikis allegedly had his ex-partner and co-parent, Olivia Wilde, served with court documents for a child custody case while she was on stage at CinemaCon in Las Vegas. Sudeikis swears he knew nothing about the very public way in which Wilde was served. However, most family law lawyers would tell you that Sudeikis’ purported ignorance is suspect considering the purpose of service, and how it is generally accomplished.

Service in its purest form is notice. It is giving the other party to a court case notice that an action has been filed against them. Examples of family court actions where service is necessary include divorce, child custody matters, contempts, modifications, etc. Upon the filing of a court case, the court in which the case was filed issues a summons. Depending on the action, the summons can demand that the party appear at the court on a certain date at a certain time, or take other action, such as filing an answer (a formal response) to the complaint filed by the initiating party. The summons is served on the responding party with a copy of the complaint and other documents filed with the court by the initiating party. Generally, a court will not take any action on the initiating party’s case unless and until the responding party has been properly served.

Service can be accomplished in many ways. Service at one’s place of work, especially in family court cases, is generally disfavored (bad form, Sudeikis!). In Massachusetts, service is most often accomplished by a sheriff or constable. The sheriff or constable is sent the summons and documents filed by the initiating party for service on the responding party. If the matter is not highly contested, and it is not anticipated that the responding party will evade service, oftentimes the sheriff or constable will simply call the responding party and ask that he or she meet him or her at a particular place and time to receive copies of the documents. If the matter is highly contested, or there is fear that the responding party will evade service, the sheriff or constable will not give the responding party advanced notice of the service, but will instead try to locate the responding party with the help of the initiating party and hand the documents to the responding party as Sudeikis did to Wilde. Upon receipt of the documents, service has been completed.

In Massachusetts, unless otherwise ordered by a court, service in a divorce matter must be “in-hand.” This means that the responding party must personally receive the papers. Not all service has to be in hand, however. The method of service depends on the court action that was initiated. For example, sometimes service can be accomplished by leaving the documents at a person’s last known address, or by mailing the documents by certified mail. In some instances, service is completed by publication, meaning notice of the court action is published in a newspaper of general circulation that the responding party is most likely to see (spoiler alert: this almost never provides actual notice to the responding party as most people do not read the legal announcements published in newspapers). Service by publication is a good option when the responding party cannot be located or is evading service. Service can also be accomplished through attorneys. Attorneys representing the parties can arrange for the responding party to accept service of the documents. Accepting service means that the responding party signs the summons and agrees that he or she received copies of the summons and other documents filed by the initiating party. This eliminates the need for and the cost of a sheriff or constable.

When and where to serve the responding party with notice of an initiated court action is usually a strategic matter that the initiating party and his or her attorney(s) carefully plan out. Therefore, it is highly unlikely that Sudeikis was unaware that Wilde would be served at CinemaCon. By all accounts, Sudeikis and Wilde have amicably co-parented their children since their split in 2020, calling into question why Sudeikis would have Wilde served in such an embarrassingly, public way. It seems that this would have been a situation ripe for Sudeikis’ attorneys to arrange for Wilde to accept service through her attorneys. It will be interesting to see how the court action proceeds and how contentious it gets given Sudeikis’ less than stellar opening scene. Until next time.

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