Service of Process

Judge Reading Documents At Desk In Courtroom

The definition of the word “serve” in terms of the law is as follows: To deliver a legal document, especially a process or notice; to present a legal notice or subpoena to a person as required by law. The actual service of person isn’t nearly as glamorous as some of the TV shows or movies make it out to be- still, the issue of service, and whether it was done properly or improperly, can be a confusing one. Let’s look at one woman’s situation to help us gain a better understanding of the service of process, especially in family law matters.

She starts by telling us this: “I had my ex initially personally served with a motion to set aside our divorce judgment. After that all papers and related motions have been served on his attorney…”. Some of those related motions were need-based motions for attorney fees and costs, a motion to compel discovery, and things of that nature. The attorney whom she served with the motion papers remains her ex-husbands attorney of record through all of this. Her question: Was this service process correct? Or did her ex need to be personally served at the start of every separate motion?

Service on an attorney for a party, rather than on the party himself, is proper if the attorney has made an appearance for the party, either by filing a paper with the court on the party’s behalf, or stating in court that he represents the party.  If she started serving his attorney after he or she filed a paper on behalf of her ex husband, or showed up in court for her ex-husband, service on the attorney was proper. If she started ‘serving’ the attorney with papers before he or she appeared for her ex-husband, service of those papers was improper. However, filing a response to an improperly served motion would generally be considered a waiver of the impropriety. It sounds as if it is too late for her ex-husband to complain about improper service, if there is any to be found.

For more on the process of service, family law, and more, please visit our website: http://stanprowse.com

Domestic Violence and Spousal Support

AdobeStock_73154055.jpegA woman approached us with questions regarding issues with spousal support in her marriage that involved domestic violence. She reports that throughout the couples’ four year marriage she was unemployed. There were several instances of domestic violence and several police reports made, but no arrest of the husband ever occurred. Still, she was granted a DVTRO, or a domestic violence temporary restraining order, by their family court judge. However, she has been unable to locate her ex-husband to have him served with the restraining order. He is now suing her for spousal support. Her question: since she was a victim of domestic violence by him, can he still be granted spousal support and attorney fees? She continues to struggle to find a job and has been living on no income.

We advised her not to worry- because she is unemployed and has no income, no Court is going to make her pay spousal support, so that needn’t concern her until she gets a job. Even then, if he’s employed, chances are he would be making more money than his ex-wife, and he would be paying her spousal support. Nonetheless, she probably would not get more than two years of support from the date the couple separated – they had a short marriage. Unless she knows he’s working and getting a paycheck he can garnish, her first order of business should be to find work for herself.

For more information on domestic violence and spousal support, please visit our website: http://stanprowse.com/spousal-support-california

Civil Judgement: How to Collect

Past Due billA man was awarded $11,500 by the court in attorney fees after being sued by his ex-wife. As of now, she refuses to pay any of the fees. What’s more, she has also quit her job. This man seeks advice on how he can collect the payments he was awarded. That wasn’t all, however. He brought up the topic of child support. Due to her recent quittance, the amount of money he pays in child support increased. He wonders if there is some sort of paperwork he can file to discontinue his payment of child support until she repays the judgement.

The first thing we made sure he understood: his obligation to pay child support is entirely independent of his ex’s obligation to pay the judgement. He can file a motion to reduce the child support because time share has changed, or his income has gone down, or income should be imputed to her because she has the ability and opportunity to work, but not because she refuses to pay the judgment. Now, the question of enforcing a judgement all together. Collecting a judgment from someone who isn’t working and has no money in the bank is difficult. If she’s collecting public assistance, he can’t get his hands on it. Perhaps she has a car with equity in it, or expensive jewelry. He can send the Sheriff to ‘execute the judgment,’ or ‘levy,’ by seizing things like that, but they may turn out to be exempt if she argues about it. Threatening her with that might get her to start paying the fees, but it sounds as if she’s a tough cookie. This man needs to consult a lawyer and tell the lawyer everything he knows about her assets.

For more information on how to collect payment from a judgement and more, please visit our website: http://stanprowse.com/enforcing-a-judgement