Serving Divorce Papers: Basics, Evasive Parties, And Service By Publication

Service In General

Service of divorce papers in North Dakota is governed by N.D.R.Civ.P. 4. This rule provides all of the intricate details related to how proper service is to be made, and by whom. Typically, service is achieved through what is referred to as “personal service.” Id; At (d). This simply dictates that service of process may be made “(A) within the state by any person of legal age and not a party to nor interested in the action; and (B) outside the state by any person who may make service under the law of this state or under the law of the place where service is made, or by a person who is designated by a court of this state.” Id; At (1)(A) & (B). Personal service isn’t always achieved, especially when service is being made on an evasive party.

Types Of Service We Utilize

We usually rely on one of three approaches to achieving proper service. However, when dealing with an evasive party, we may rely on all three.

Process Server. We typically make our initial service attempt through a process server. Process Servers are more flexible and tend to operate on a less predictable schedule. Unpredictability is important when dealing with an evasive party. Process Servers will typically make more attempts at service, provide an accurate detail of those attempts, and are willing to tailor their attempts to your preferences. This also means that they will attempt numerous addresses and most importantly serving your papers is their top priority.

Sheriff. If our first attempts have failed, then we typically try the local sheriff in the county in which the evasive party resides and/or is last known to have resided. Sheriffs are typically chosen second because their schedules are predictable and they have more important priorities than immediately serving divorce papers. Also, it is typically a longer wait with this type of service and sometimes the cost is higher.

Certified Mail. Although this option is the least expensive of the three, it is also the least reliable when dealing with an evasive party. The precise reasons are because the mail cannot be delivered without a signature, and there is only one attempt made. Simply put, If someone has knowledge that they are about to be served and they want to avoid it, then they can simply refuse to sign. If a signature is refused or the party is simply not present, then Certified Mail will sit at the post office for fifteen (15) days after the unsuccessful attempt before it is sent back as undelivered. This option may be the first utilized when there are multiple addresses that the party could be residing at and we don’t have reason to suspect that the party will evade service.

Remedy To Evasiveness And The Unknown Address

If all else fails, and we have no documented information on the opposing party intentionally evading service–or any idea of a specific address–then our final remedy is Service By Publication. N.D.R.Civ.P 4(e)(2)(A)-(D). In order to achieve this, every effort should have already been made to locate the opposing party and/or the opposing party’s physical address. Id. At (e)(2). The rule provides that a Complaint and Declaration must be filed detailing the attempts that were made to locate the evasive party and it must state “(A) that after diligent inquiry personal service of the summons cannot be made on the defendant in this state to the best knowledge, information, and belief of the declarant.” Id. At (e)(2)(A).

Service by publication for divorce cannot be made in North Dakota, without the clerk of court accepting the requisite filings and assigning a case number, as well as an Order from the Judge of record. Once the Court assigns a case number, and the Judge signs the Order, we may publish the summons in the newspaper in the ND County where the action is pending. The first publication of the summons must be made within sixty (60) days after filing the Declaration and Complaint requesting Service by Publication. The publication of the summons will run three (3) times, once each week for three (3) consecutive weeks. Next, we mail a copy of the summons and complaint to the evasive party’s last reasonably discoverable address. There are additional time constraints and requirements in relation to this as well. Finally, we file a copy of the affidavit of publication from the newspaper publication of the summons and a copy of the affidavit of service that proves that delivery to the evasive party’s last reasonably discoverable address was properly achieved.

Conclusion

Service issues can be extremely complicated and costly. It is important to consult an attorney to ensure that these issues are properly navigated. If you need legal assistance, contact SW&L at 701-297-2890 or email us at: info@swlattorneys.com.

The information contained in this blog and on this website is for informational purposes only. Do not rely on the information on this website as legal advice.

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