Family on the Run: Evading Service of Process in a Florida Family Law Matter

We’ve all heard the term “you’ve been served,” but what exactly are the ins and outs of serving someone in a Florida family law matter? When initiating a new family law matter, due process requires the petitioner to serve the initial pleadings on the respondent via service of process. This ensures that a respondent has proper notice of the proceedings and opportunity to be heard. Typically a Petition is filed, a summons is issued for service of process at the respondent’s address, and a process server or sheriff goes and delivers the papers to the respondent personally, by knocking on the door and handing them the papers. Sometimes though things aren’t so simple. People may avoid being served to delay court proceedings, or in hopes that the case will be dismissed entirely. Other reasons for avoidance may be due to misunderstanding how the legal process works or to avoid financial responsibility. Common tactics of those avoiding service include refusal to answer the door, ignoring phone calls, providing incorrect addresses or employment information, or leaving the residence during service attempts.

Actively evading service of process will not stop a case from moving forward. If a party hides or refuses to accept service there are other remedies available to the petitioner. Alternative methods of service include drop service, substituted service and even service by publication.

Drop Service: If the process server is able to confirm the person’s identity but not able to physically handoff the papers, service can be accomplished by leaving the papers with the person, in their immediate vicinity, by placing them on the doorstep for example and notifying the person being served of the nature of the documents.

Substituted Service: Under Florida Statutes §48.031, the papers can be left at the person’s home with any person residing there who is over age 15, so long as appropriate attempts to serve the respondent have been made. If the matter is adversarial then the petitioning spouse cannot accept substituted service for the respondent. Substituted service may be made on a respondent doing business as a sole proprietor at their place of business, during regular business hours, by serving the person in charge of the business at the time of service, if two attempts to serve the owner are made at the place of business.

Service at the Workplace: If service at a person’s home address fails, then the process server can attempt service at the respondent’s place of business.

Service by Other Means: Florida Statute §48.102 provides for other methods the court may allow to complete service when other attempts fail. In order to use alternate methods, it is required to file a motion with the court detailing multiple failed attempts to serve the respondent at their home, work, or other known addresses with a process server. The proposed alternate service method must be shown to be “reasonably effective;” for example an email address must be proven to be in use and accessible to the respondent. Service by other means cannot be utilized unless the judge signs an order granting the motion to serve by alternate means. Some methods courts may allow include service by email, service by Fed-Ex or UPS with delivery confirmation (without signature required). In Olin Corp vs. Haney, a Florida case, it was determined that service of process was affected when the process server read the papers to the individual and left the copy in their door.

Service by Publication: If you are unable to locate the respondent after a diligent search, the court may allow service by publication in a court-approved newspaper. You must first file a sworn statement describing your search efforts and file a motion for service by publication. The court cannot order child support, alimony or division of property in the petitioner’s possession when service by publication is used.

Service on Secretary of State: When the respondent is an out of state resident or corporation and other methods of service are ineffective, service may be made under Florida Statute §48.161 by substitute service on the Secretary of State.

When a party actively and intentionally avoids being served, this is called evasive service. If you can prove to the court that the respondent is actively evading service, then once they are effectively served, you can recover fees for the costs of the service attempts and delay caused. Florida law requires a petitioning party to effectuate service of the petition within 120 days of filing. If the 120 day deadline is approaching you may file a Motion to Extend Time to Serve, documenting the process server’s attempts over the 120 days since filing.

Once the evasive respondent is eventually served, they will have 20 days from service to respond to the petition. If no responsive pleading is filed then the petitioner can move for default judgment, which will result in the respondent losing the right to present evidence or contest claims made by petitioner.

If you have a Florida family law issue you need guidance with, reach out to Cody Law to schedule a consultation.

Squandering the Nest Egg: Dissipation of Marital Assets

What can you do if your spouse is gambling, spending, going into debt, drinking away, or hiding away marital assets during your divorce? Dissipation of marital assets, or intentional waste/depletion of marital property in Florida is a serious concern. It can include excessive spending (outside of what was typical during the marriage), spending related to an extramarital affair, mismanagement of finances (accumulating credit card debt etc.), intentional waste of marital funds or assets, such as through gambling, and asset devaluation (for example destruction of property, withdrawing money from a 401K or withdrawing large sums in cash), diverting funds to friends or family members to shield it from the divorce process.

Florida Courts typically equitably divide all assets and debts acquired during the marriage. However, if it can be proven that one spouse dissipated assets, the court may adjust the division of assets to create a more fair result. The party proving dissipation of marital assets must establish that the assets in question were part of the marital estate; that the actions taken to deplete the assets occurred without the other spouse’s knowledge or consent; that the spending did not benefit the household/marriage; and that the wasteful behavior occurred during the marriage (particularly close to the time of separation). Florida courts can consider dissipation of assets that occurred after filing and within two years prior to filing for divorce, however in limited circumstances the court can look back further.

Potential Remedies

If dissipation is established, there are several potential remedies the court may consider:

• Unequal property division

• An award of 50% of the dissipated amount

• Allocating assets/debts as separate property

• Penalties

• Issuance of an Injunction

  If the dissipation is ongoing, it may be necessary to request that the court freeze certain marital assets during the pendency of the divorce.

  In proving dissipation, having the proper evidence is pivotal. Having the proper legal representation is important. You should monitor all accounts closely and document any questionable transactions. Your attorney may need to conduct further discovery to get a full financial picture and it may be necessary to utilize a forensic accountant to trace hidden assets. Contact Cody Law, PLLC to discuss your specific situation and whether an unequal division of marital property may be appropriate, as well as other remedies, due to dissipation of marital assets.