Proof of Service
Service of documents is perhaps the single most critical step required to ensure your case moves forward. Defective service can result in your case being continued or dimissed. This guide provides a simple overview of personal service and service by mail. This will not cover international service.
Why Service is Required?Any document you file with the Court MUST be served on the opposing party. Each party is entitled to notice (when a hearing is taking place, where, the time, and the issue at hand). Each party is also entitled to receive a copy of all documents filed including declarations, exhibits, and attachments. If the Judge sees it, the other side must see it. This is so that the other side has an opportunity to not only review your documents but file a response if they so choose. Most often you must serve blank copies to the other side of the documents they would need to respond to your paperwork. There are procedural timelines for when responses are due, a subject for another guide.
Proper service of documents ensures the other side has received notice and tells the court that it may move forward in having proceedings in the case. If service is defective, meaning the other side is never given notice of a hearing or a copy of your paperwork, the Court cannot make orders for you. In such circumstance, the Court will likely continue your matter until service is properly completed. Please be aware, the court will continue your matter only so many times before it dismisses the matter for failure of service. So, you can see why it is so important to your case to make sure service is completed both timely and properly.
How is Service Accomplished?There are several procedural rules for the type of service being done. The most common type of service that you have probably heard of is "personal service." This is your classic TV moment when someone hands another person a document and says "you've been served." In real life, while the concept is the same, it's not as dramatic! Personal service is required for certain documents. For example, if you file for a divorce and you are the Petitioner, then your Petition and associated documents must be personally served on the other party.
Service by mail is another way to accomplish service. There are very specific rules of service by mail in other countries which will not be covered in this guide. If you are serving a party into another country please ensure to look up those specific rules. For our purposes here, we will look to service by mail in the United States.
For BOTH personal service and service by mail the requirement is that a person, age 18 or older, who is NOT a party to your case must complete service. This means, in your divorce case, if your neighbor who is 20 years old, personally hands your documents to your ex, they have properly served your ex.
For service by mail, again someone who is age 18 or older, not a party to your case must put the documents into an envelope and put the envelope into the mail to be mailed out.
However, this does not mark the end of service. The next step is the most critical to ensure the Court knows that service has been completed.
Proof of Service FormThere are specific judicial counsel forms for personal service and service by mail. These forms are free online. Please note, these forms will vary based on the area of law in which your case is. For example, family law has its own service forms while civil cases have their own. Ensuring the proper proof of service form is completed AND filed is critical for the service process.
Once the third party has served the other side, be it by personal service or by mail, that third party MUST complete the proof of service form ( which you will give them) and then give it back to you. YOU must then file it with the Court. Please note, if you hire a company to do the service for you they will ensure the proper proof of service is completed but they too will return the completed form to you for you to file it with the Court.
Only after you have filed the proof of service form with the Court will you be done with the service process. You want to make sure you file your proof of service as soon as it is done to ensure it is timely filed and makes it into your file for the Judge to see.