Print Posted by Mark B. Baer, Inc., a Professional Law Corporation on 02/23/2015

Emotional Considerations Regarding Service of Process

Emotional Considerations Regarding Service of Process

Divorce and family law matters are so highly charged that possible emotional responses to the manner in which things are to be approached should be taken under very careful consideration.  In fact, the following is an excerpt from Florida Family Law & Practice by Judge Renee Goldenberg:

 

The petitioner’s lawyer and the petitioner should discuss how and when to contact the respondent initially.  The timing and method depend on the facts and circumstances of the case, the emotional stages of the parties, and if immediate emergency ex parte relief is necessary. 

 

Discuss with the client the alternative means of contacting the spouse and ask the client to tell you what he or she thinks the spouse’s reaction would be to the contact.  Give the client examples of what you have seen happen in your professional experience.  For example, the spouse may be in denial that there is anything wrong, and being served with divorce papers may exacerbate the situation unnecessarily…. 

 

If the respondent is self-represented, the client may prefer that the lawyer contact the respondent for the first time by a short letter of introduction.  The letter may simply state that the lawyer has been retained and that the spouse should contact the lawyer or have the spouse’s lawyer contact the client’s lawyer, or may go further to define and suggest mediation, provide a financial affidavit, or explain the parenting course and mandatory disclosure requirements to begin the process of the legal dissolution…. 

 

The lawyer and client should discuss whether initial contact should be made by telephone and the parameters of the conversation and potential consequences, so as to minimize any conflict….

 

The lawyer and client should examine all the alternatives, including the consequences of the respondent’s emotional response to the first receipt of dissolution information by service of a petition for dissolution of marriage under the existing circumstances.  [S]erving the petition may precipitate a war.  If you expect this result, so inform the client in writing before filing.  Document in your file your client demands filing and serving despite your recommendation otherwise.  Be sure your client understands the law on fees and costs and sanctions, and be certain that your client has the financial resources to pay for the sanctions you may be faced with, as well as the sanctions the client may be faced with if service of the petition unnecessarily precipitates a war.  Make sure your retainer agreement covers this contingency.” 

 

While the law on fees and costs and sanctions may vary from state to state or country to country, that doesn’t impact the reasoning behind Judge Goldenberg’s very sage advice.  The following quote from a process server’s website substantiates that advice:  “Depending on the nature of your case, service of process can evoke strong emotional responses from the parties being served. Kicking someone out of the house, initiating a divorce, or taking other formal legal action can produce volatile reactions, especially when service of process occurs unexpectedly.”

 

If you determine the petition should be effectuated through service of process, you should consider the possible reactions, depending upon where the person is served, whether others are present at the time, and whether any particular date of service may be more emotionally charged than others.  After all, if on top of everything else, the service embarrasses them in front of others, that will only add fuel to the fire. 

 

At a bar association meeting a couple of years ago, a colleague was describing the most contentious and costly divorce he had handled in his career.  It just so happened that the Respondent was served with the Petition on Christmas Day.  Is anyone really surprised by the result?

 

If you retain a lawyer or other professional to “handle” your divorce or family law matter or to otherwise advise you and they don’t raise these issues, you should seriously consider taking your business elsewhere. 

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