What can I do if my ex-husband denies being served divorce papers? 38 Answers as of August 25, 2012

In my recent divorce, I had my husband personally served by a third party and gave the court the signed affidavit of service. The divorce was finalized but now he claims he was never served and says he is going to contest it. Would the court even consider such a claim?

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Victor Varga | Victor Varga
It's a little late to do that now...that is one of your arguments if he does bring it up. As long as it was good service, and the 3rd party testifies about the service, you have nothing to worry about.
Answer Applies to: Maryland
Replied: 8/25/2012
The Law Offices of Dave Hawkins
The Law Offices of Dave Hawkins | Dave Hawkins
Not really unless he can prove that the process server lied.
Answer Applies to: Washington
Replied: 8/25/2012
Attorney At Law | Harry D. Roth
Consider it? Sure. Grant it? Probably not. Here is the thing. Talk to your former husband.

Ask him to read the divorce papers over very thoroughly and tell you exactly what he does not like about them.

If he has a legitimate point, then negotiate a new deal and both of you sign it and submit it to the judge as an amended divorce. If he has no point, he is just whining, then tell him to file whatever papers he likes.
Answer Applies to: California
Replied: 8/25/2012
Lombardi Law LLC
Lombardi Law LLC | SUZANNE LOMBARDI
Whether the court will entertain such a claim depends on a variety of circumstances. If the court signed the affidavit of service he may have difficulty proving that he was not served. An attorney can help navigate this issue if he in fact contests the divorce.
Answer Applies to: Alaska
Replied: 8/25/2012
Reza Athari & Associates, PLLC | Seth L. Reszko
Hopefully, you had a private process server or the constable serve your husband. Your husband can say anything to the Court, but if you have a credible person who served your husband, the Court will likely not believe your husband that he was not served with divorce papers.
Answer Applies to: Nevada
Replied: 8/25/2012
    Law Office of Melvin Franke | Melvin Franke
    Yes, but he will lose if the service is good.
    Answer Applies to: Missouri
    Replied: 8/25/2012
    Ezim Law Firm | Dean Esposito
    Yes, but he would have to prove his case. The third party would testify that he did serve Him and your husband would lose.
    Answer Applies to: Louisiana
    Replied: 8/25/2012
    Steven Alpers | Steven Alpers
    It would hear his claim but if you have the 3rd party write a declaration and appear at court, if necessary, unlikely to start over.
    Answer Applies to: California
    Replied: 8/25/2012
    Dorothy Spinelli, PC | Dorothy Spinelli
    If he was served properly, which it appears he was, typically that would not be a valid defense or claim. Best of Luck.
    Answer Applies to: Georgia
    Replied: 8/25/2012
    ADELMAN & SEIDE, LLP
    ADELMAN & SEIDE, LLP | GEORGE N. SEIDE
    He might get a hearing, but the party who served him will testify and there should be no problem.
    Answer Applies to: California
    Replied: 8/25/2012
    Law Office of Gregory Crain | Gregory Crain
    Yes but prove it by having the 3rd party testify.
    Answer Applies to: Arkansas
    Replied: 8/25/2012
    Law Office of Anthony Roach | Anthony Allen Roach
    If it's timely. He's going to need really good grounds to set aside his default. You may want to speak to an attorney at length, to see if his motion may have any merit.
    Answer Applies to: California
    Replied: 8/25/2012
    Leonard A. Kaanta, P.C. | Leonard A. Kaanta
    Probaly not, the proof of service says he was served.
    Answer Applies to: Michigan
    Replied: 8/25/2012
    Gregory T. Buckley, Attorney at Law
    Gregory T. Buckley, Attorney at Law | Gregory T. Buckley
    Was the person who served him the papers an actual process server, or just someone you knew? If the papers are not served by the Sheriff, you need to get the court to appoint a process server in advance.

    However, if your ex-husband participated in the proceedings (filed an Answer, attended hearings, etc.), the court would probably not allow him to raise service as a reason to contest it.
    Answer Applies to: Florida
    Replied: 8/25/2012
    Peyton and Associates | Barbara Peyton
    Your husband has the burden of proving he was never served. The court would consider it but if the division of property, etc is fair in the divorce judgment, the court will probably not set the judgment aside. You might need a lawyer for this if your ex-husband files a motion to set aside the judgment.
    Answer Applies to: California
    Replied: 8/25/2012
    Mediation Services of Southwest Florida
    Mediation Services of Southwest Florida | Dennis J. Leffert, J.D.
    It is not possible to second guess the Court, but if a third party served the papers and signed a proof of service; with no other facts, I don't see why the Court would rule in favor of your husband. Perhaps he is trying to scare you into something. My suggestion is for you to proceed with the divorce and see what happens.
    Answer Applies to: Florida
    Replied: 8/25/2012
    Graves Law Firm
    Graves Law Firm | Steve Graves
    Sure, he can move for new trial or what's called a "bill of review" (if the decree is more than 30 days old) on the basis that he was never served, but if your process server was authorized under law to serve him, the sworn return will be hard to overcome.
    Answer Applies to: Texas
    Replied: 8/25/2012
    Dennis P. Mikko Attorney at Law | Dennis P. Mikko
    It may well be past the time he could contest service. If there is a valid proof of service on file, the Court will require him to show he was not served. The person who served process could testify as to what was done, where it was done and when. You ex-husband will have a hard time proving non-service.
    Answer Applies to: Michigan
    Replied: 8/25/2012
    Attorney at Law | John P. Rivers
    In Georgia a party can attack a judgment in a number of ways. You need to speak with the lawyer who represented you in the divorce and make sure that he is aware of the situation.
    Answer Applies to: Georgia
    Replied: 8/25/2012
    Mike Yeksavich | Mike Yeksavich
    If a Decree was entered he may have a difficult time having it set aside if there was proper service.
    Answer Applies to: Oklahoma
    Replied: 8/25/2012
    Law Offices of Frances Headley | Frances Headley
    Unless facts are presented that show that he was not served and had no knowledge of the action, the court is not likely to set aside the action. You should consult a family law attorney to review all of the paperwork and advise you how to proceed.
    Answer Applies to: California
    Replied: 8/25/2012
    WARM SPRINGS LAW GROUP | Elliott D. Yug
    A lot will depend on the judge and what you husband "lost" by not responding. In order to fight this, your process server will have to testify in court.
    Answer Applies to: Nevada
    Replied: 8/25/2012
    Donaldson Stewart, PC
    Donaldson Stewart, PC | Monica H. Donaldson Stewart
    If he was served by a licensed process server, then the affidavit of service should be sufficient to rebut his claim that he wasn't served; however, if he was served by an "unlicensed" third party, the service may not be valid and he may have grounds to challenge it.
    Answer Applies to: Arizona
    Replied: 8/25/2012
    John Russo | John Russo
    He has 3 chances none,none, and none, as long as what you claim is factual and the 3rd party meets your States statutory requirements for a service processor.
    Answer Applies to: Rhode Island
    Replied: 8/25/2012
    T.K. Byrne | Timothy K. Byrne
    It will be a swearing match between the process server and you husband.
    Answer Applies to: Mississippi
    Replied: 8/25/2012
    Petit & Dommershausen SC
    Petit & Dommershausen SC | Tajara Dommershausen
    No, if he was served and the affidavit is in the court file, he is out of luck.
    Answer Applies to: Wisconsin
    Replied: 8/25/2012
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    The court can consider it but it will more than likely not prevail if your process server can testify that in fact he was served.
    Answer Applies to: California
    Replied: 8/25/2012
    Castro, Rivera & Associates | Sandra Rivera
    He can't claim that if you have a valid affidavit of service by an official process server. You can always call the process server in to testify to that fact.
    Answer Applies to: Florida
    Replied: 8/25/2012
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    Who did the service? Was it just a third party friend or acquaintance? If so, he may succeed. If, however, you used a party authorized by the Supreme Court of Texas, he can scream until his lungs hurt. The only exception is if he can plead for a bill of review - a very limited appeal route.
    Answer Applies to: Texas
    Replied: 8/25/2012
    The Law Office of Eric J Smith
    The Law Office of Eric J Smith | Eric Smith
    Talk is cheap. Appeals are expensive. If you used a well-established process server, they tend to do well when testifying against aggrieved parties - especially if the aggrieved party is lying.

    Your ex-spouse has the right to appeal the order within 30 days of signing, but he has a very small chance of succeeding without an attorney, and from what you describe, an only slightly better chance with one.
    Answer Applies to: Texas
    Replied: 8/25/2012
    Robert J. Merlin, P.A.
    Robert J. Merlin, P.A. | Robert J. Merlin
    May consider it, but probably will not do what he wants. Let him make a move. In the meantime, live by the terms of the final judgment.
    Answer Applies to: Florida
    Replied: 8/25/2012
    Law Office of Jane E. Ginsburg
    Law Office of Jane E. Ginsburg | Jane Ginsburg
    If you have the proof of service, probably not.
    Answer Applies to: California
    Replied: 8/25/2012
    Mary W Craig P.C. | Mary W Craig
    If the court holds a hearing, you will simply subpoena the process server to come in and testify that your ex-husband was personally served, and that the way the process server filled out the return was true and correct. That should take care of it.
    Answer Applies to: Alabama
    Replied: 8/25/2012
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    The may consider such a claim,. However, the person serving the documents may testify that they served him. Ultimately, if he contests, he can be served in court which solves the issue.
    Answer Applies to: Minnesota
    Replied: 8/25/2012
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    Not likely, but the person who serviced him may have to testify.
    Answer Applies to: Michigan
    Replied: 8/25/2012
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