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
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
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.