What is service of process?
“Service of Process” is the way you deliver court papers to the person required to respond to them. This person is called the “defendant.”
You must tell the defendant, in writing:
- there is a case
- what the case is about
- what the defendant must do
- if there is a court hearing and
- when and where to come to court.
Why do I have to notify the defendant about the case?
Unless the court believes there is an emergency, the court can only make an order if the defendant knows there is a case. A defendant must have a chance to come to court and present his or her side of the story.
When do I have to notify the defendant?
In most family law cases you have 90 days after you file the complaint to serve the defendant. For a Complaint for Contempt, the defendant must be served at least 7 days before the hearing date.
How do I notify the defendant?
After you file the complaint, you will get a summons and tracking notice. You need to “serve” a copy of the summons, complaint, and tracking notice to the defendant.
Usually you need to hire a sheriff or constable to serve the defendant. There are also directories of constables online. You will need to pay the sheriff or constable for the service or give him a copy of your approved indigency form. When a sheriff serves the defendant, he gives the defendant a copy of the summons, complaint and tracking notice.
Then, he fills out the second page of the summons, called Return of Service. Return of Service is proof that the defendant was served.
Once this is completed, the original summons (not a copy) must be filed with the court. Check with the sheriff to see if he will file it for you or if you must file it with the court yourself. It is your responsibility to make sure the original summons is filed.
What if I do not know where the defendant lives?
First, have the sheriff try to serve the defendant at the last place you knew the defendant lived or worked. If the sheriff’s return of service says that the defendant was not found, you can get service of process by publication in a newspaper. Before you can do this you need to get approval from the court. To get approval follow these steps:
- Ask the Register which form you should file: a “Motion for Service by Publication,” or a “Motion for Alternative Service,” and whether the court has a sample you can look at.
- Attach an affidavit to the motion. An affidavit is a written statement that is sworn under the pains and penalties of perjury. In your affidavit, write that you do not know where the defendant lives. Write down the last address you know of for the defendant. Briefly describe your efforts to find him or her.
- Mail the motion, affidavit and proposed order to the court or file it in person with the Register. Ask the Register if you need to appear before a judge or if you will be notified by mail.
- If the judge allows your motion you will get an order. The order will state which newspaper to publish the notice in and when to publish it. It will also give you the wording of the notice. Bring the notice to the newspaper and give it to their legal notices department. After it is published in the newspaper, get a copy of that page of the newspaper and file it with court to prove it was published.
What if the defendant does not live or work in Massachusetts?
You must find someone who is authorized to serve the complaint and summons where he or she lives or works. The Register may be able to help you locate someone to serve the papers there.
What if the defendant is willing to receive a copy of the complaint from me?
If the defendant is willing to accept service or accept a copy of the complaint, summons and tracking order directly from you, he or she must sign the summons where it says “Acceptance of Service” in front of a notary public. Then you must file the return of service with the court. Most banks have, and most attorneys are, notaries public. There may be a small fee for the services of a notary public.