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Friday, July 4, 2014

Avoiding Divorce -- Can I be made to sign something I don't want to?


I don't want a divorce...can I duck it?

Well, maybe. The question is, do you want to spend your life hiding under a rock?

In order for a divorce to be had in Virginia, DC, or Maryland, one of two things must happen (this assumes there is no acceptance of service, or agreement to waive service).

In the first instance, you have to find the person to be served, and thwack them with the divorce complaint (this is called "personal service", and images of "You've been served!!" should come to mind). Proper personal service means the divorce complaint is filed with the clerk of the appropriate circuit court, and it must be delivered by a party, other than the complaining individual, who is 18 years or older, and able to testify in court that the service was done. The term "service" refers to "the act of delivering a legal document to a party opponent." See VA Code §8.01-296 (note: that you cannot post on the door of the residence for a divorce complaint). For a full explanation of the process, and the special rules of service related to VA divorces, see Pro Se explanation of divorce procedures. Typically, service is done through the sheriff for a fee, or private process server (see VA Code §8.01-325).

In the alternative, you may serve by publication if the person you are attempting to serve cannot be found. This is tricky, as you need to prove the individual cannot be found, and no that you are merely avoiding personal service. Generally, you must show the Court (depending on the local rules, either the Clerk or a Judge) you have attempted personal service, and have been unable to find the individual. Only then will the Court grant leave to provide service by publication. In Virginia, service by publication is controlled by VA Code §20-104 and VA Code §8.01-316.

In the other local jurisdictions, DC is slightly different. The code governing service in domestic relations cases is controlled by local court rules -- specifically, Superior Court Domestic Relations Court Rule 4. This rule outlines all the guidelines for proper service, although they largely follow the same outline as VA. Note, however, that is quite uncommon to have the Marshals deliver a complaint on anything. You should presume that service must be perfected by private process or publication (with leave of Court), unless there is consent from the other side.

For Maryland, see Outline of filing requirements for absolute divorce in MD. Generally, like DC, service regulations are governed by local court Rule -- in this case, Domestic Relations (DomRel) rules and Maryland Court of Appeals rules. See generally MD Rules 2-100. This is an index to the Title 2, Chapter 100 rules on service and commencement of a suit in MD. See more specifically, 2-111, 2-112, 2-123, and 2-124.

In answer to your original question, then -- while you cannot be compelled to sign or agree to anything, your failure to respond or "answer" a complaint can be held against you. Usually, if you avoid personal service, after 45 days, the complainant will ask leave of the Court to file by publication. If this is approved, you may find that the divorce is granted, and the terms awarded by the Court ex parte, meaning by consideration of the complainants statements and testimony only. Not advisable.

If you have already been served, the you need to speak with competent counsel to determine what the best course of action is in your case. Do NOT sign anything without speaking to an attorney. Mistakes in property settlement agreements are usually irreversible once a decision is entered by the Court (with some notable exceptions -- but don't rely on these).

Do you need help with your separation agreement, parenting plan, or divorce procedures? Contact us before signing anything. It could be the greatest savings you've ever experienced. 1-800-579-9864

(image from http://www.spifl.com/blog/tag/process-server/)


Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Snyder, Esq.

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