Should You Acknowledge Service of a Divorce or Modification Petition?

Most any attorney will obviously advise you to hire an attorney to represent you for any litigation in the domestic relations arena (i.e., divorce, modification of custody or support, legitimation, paternity, contempt). That remains sound advice. However, if a domestic relations complaint is filed against you, but don't yet have a lawyer, and opposing counsel asks you to acknowledge service, should you do it? Generally speaking, the answer is "yes." Filing a lawsuit in Georgia is not enough for the court in which the action is filed to gain personal jurisdiction over the defendant. One of the prerequisites for a court to be able to enter and enforce an order commanding a defendant to do/not to do something is for the defendant to be formally served with "process."

Process, for purposes of this article, means the documents that form and define the particular complaint(s) that a plaintiff is seeking to prosecute against a defendant in court. A plaintiff himself cannot "serve" process on a defendant. Aside from service by publication, which is not addressed in the article, personal service is accomplished by either: (a) a law enforcement officer (usually a sheriff) employed in the jurisdiction where service is to take place; (b) a privately-hired process server who must first get authorization from the assigned judge to serve the defendant (unless he is on a pre-approved list); or (c) by way of the defendant's acknowledgement of service.

Obviously, if you already have hired an attorney, then your attorney can accept service of a petition filed against you. When you have not yet hired a lawyer though, you might ask about the relative pros and cons of acknowledging service of the court petition rather than be served by a sheriff or private process server (or try to elude service altogether)? Georgia law states that defendants have a general duty under O.C.G.A. § 9-11-4(d) to acknowledge service of process (rather than require that a plaintiff utilize law enforcement resources).

Although any penalties that might result from a failure of a defendant to acknowledge service under O.C.G.A. § 9-11-4(d) first requires that a plaintiff comply with a series of specific notification steps, it is still true that a defendant who has clearly attempted to elude service risks looking irresponsible, petty or immature – definitely not qualities a parent or other litigant in a domestic relations case wants a judge to be ascribing. I do not mean to say that someone who does not agree to acknowledge service will be viewed as antagonistic or will be perceived by the court to be difficult.

I mean to say that a defendant who purposely avoids service by sheriff or private process server may look less than responsible. However, considering the policy of Georgia to encourage acknowledgement of service, it isn't such a bad idea to just get it over with and accept service. Additionally, being served by a sheriff at your residence or your place of employment often generates unnecessary embarrassment or hassle. Avoiding this hassle and embarrassment is another benefit of acknowledgment of service.

Note that O.C.G.A. § 9-11-4(d)(1) provides that a defendant that acknowledges service does not thereby agree that the court can lawfully exercise jurisdiction or that the county court in which the plaintiff filed (venue) is the proper court. Acknowledging service simply means that the defendant will not require service by other means (like through a sheriff or private process server) and does not result in any waiver of any actual defenses against the action (except as to improper service). A defendant can still raise his/her regular defenses.

So, if you can avoid the embarrassment of sheriff's service, and you are not waiving anything by acknowledging that you have formally received a copy of the plaintiff's paperwork he/she filed, why not acknowledge? As lawyers, we are reminded each day that every case is different. Perhaps a defendant would want to refuse to acknowledge because it is their right to be served in person (absent a plaintiff's precise compliance with the dictates of O.C.G.A. § 9-11-4(d)(3)). Or perhaps a defendant stands to gain by allowing more time to pass.

Maybe the defendant is out-of-state and thinks it will prove more difficult for the plaintiff to have local law enforcement serve the defendant (although it is not difficult at all for a skilled attorney to accomplish out-of-state service). It is true that if the plaintiff is simply unable to serve the defendant then the action will be dismissed by the court eventually. However, since most domestic relations cases require a continuity of communication between the parties (whether for co-parenting, support payments, execution of a divorce decree, etc.) the notion of avoiding service altogether usually either backfires or is unrealistic. Still, each and every case stands on its own legs, and acknowledgment may not make sense under a particular set of circumstances.

Ultimately, a good rule of thumb is to acknowledge service of a domestic relations case when the plaintiff is represented by counsel (or if the plaintiff follows the directives of O.C.G.A. § 9-11-4(d)(3)). In the end the positives of acknowledgment almost always outweigh any perils. Having practiced in the area of domestic relations for nearly 20 years, Fox Firm, P.C., represents a broad spectrum of litigants who all share the common goals of expecting good results and a lawyer who actually cares about them.

If you are reading this article with a domestic case either on your plate or one looming on the horizon, your best bet might be to leave the issues of service to a competent and reliable attorney like Douglas N. Fox and start looking at the bigger picture of the ultimate outcome you would like to see happen in the case. Though my office is located two minutes from the Gwinnett County Courthouse just off the square in Lawrenceville, Georgia, I offer my services throughout metro Atlanta as well as in the mountains of North Georgia.