The Fourteenth Amendment of the United States Constitution establishes the requirement of "due process" when someone's "life, liberty, or property" is at stake. State Constitutions have adopted this right and enacted laws governing the "service of process," which outlines the methods for delivering legal documents to defendants. When individuals face legal action, some may go to great lengths to avoid being served with these documents, believing that it will help them evade the consequences of the case. However, this is a misconception. It is crucial to understand that evading service does not make the case against you disappear; instead, it can have negative repercussions. Let’s dive into part one on this subject.
Being served with process means that the legal requirements for providing notice of a legal action to a defendant have been met, ensuring due process. While specific requirements may vary between states and types of actions, personal service is often the first attempt made. Personal service involves physically handing the documents directly to the defendant. The person serving the papers must meet certain criteria, such as suitable age, depending on the state's regulations. If personal service is not possible, alternative methods of service may be employed. However, some states may require personal service for certain types of actions, like divorce. There are exceptions to these general rules, such as the Federal Rules of Civil Procedure, which allow defendants to waive in-hand service. In any case, there are procedures in place to proceed against defendants, regardless of their attempts to avoid being served.
It's not surprising that individuals who know they are in legal trouble, facing a divorce, or on the verge of foreclosure, go to great lengths to avoid process servers. They may refuse to answer the door, deny their identity when confronted, hide in closets until the server leaves, or seek refuge with family members. While these tactics may successfully prevent personal service, they offer no protection against legal actions moving forward. Avoiding being served is not illegal but rarely beneficial. In some cases, it can result in court orders and decisions being made without your knowledge, leading to lengthier and costlier legal proceedings. Additional fees and expenses incurred due to avoiding service, such as multiple service charges for repeated attempts, can be charged to the person evading service.
Those attempting to evade service often mistakenly believe that personal service is required to initiate legal action against them. In reality, in almost all cases, there are alternative methods available to proceed with legal actions even if personal service does not occur. Most states require multiple attempts at personal service before substituted service can be utilized. These failed attempts must be properly documented, including dates, times, and locations, before the documents can be left with an appropriate person of suitable age at the defendant's residence or workplace, with a copy also mailed to the substituted service address. Some states allow legal documents to be posted at the defendant's residence, place of business, or even on a car windshield, followed by mailing. This method is commonly referred to as "nail and mail." In matrimonial actions, some states may initially require "personal service only," but if it becomes evident that the defendant is aware of the action, the court may pressure the parties to accept proper service, under the penalty of being charged for additional service attempts.
Another important reason why avoiding service of process is futile is that courts consider "actual knowledge of a legal proceeding" to satisfy due process requirements. So, you cannot simply refuse to take the documents in your hand and say that you were never served because of this. The courts will see that you were aware of the contents of the documents and consider that as an acknowledgement of the case against you or that you are involved in.
In part one of this two part series we saw what it means to be served, what it looks like when someone tries to avoid being served, and which alternative service methods are accepted by the courts. In the next part we will go over why attempting to avoid being served can cost you in the long run.
By Roland Investigations 5-19-2023
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