if you use a court server to serve someone in a divorce and the never show up and get a default is it likely if they file for retrial on basis they never get served likely to be granted
Family Law Attorney
Depends... if the person was personally served, the Court isn't going to let them off easily on that basis. But there are a lot of jurisdictional hoops that must be jumped through to make sure everything went properly. You should take the papers and case to a lawyer and speak with them about the situation. Once an attorney views the papers and the court's register of actions, you will have a better answer.
This answer is intended for informational and educational purposes only and should not be considered legal advice nor forming the attorney client relationship. This attorney is licensed in Texas.
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Family Law Attorney
First, we will assume that when you refer to a "court server" that you are referring to a sheriff or constable through the court. Service can also be accomplished through a private process server, which tends to be more expeditious, but costs more. "Service" is a term used to describe the formal process by which a petitioner (person filing for divorce) gives the respondent (person being served) notice that a divorce has been filed. The purpose of service is to give the court jurisdiction over the respondent, to satisfy due-process requirements of the Constitution, and to give the respondent the opportunity to appear and defend the case.
Second, we will assume that all of the rules for issuance of citation, the service of process, and the return of process were followed. These rules are very important, especially in cases where the court renders a default judgment (no show). Appeal of a no-answer default judgment will be reversed (granted) unless there is strict compliance with the rules.
Making these assumptions, the respondent’s only argument for a new trial would be that the failure to file an answer was not intentional or the result of conscious indifference but was due to mistake or accident. The respondent will need to give the court a good reason as to why no answer was filed. Without a strong and convincing reason, the court will be unlikely to grant a new trial.