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Category: Legal Aid

What is Service?

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Written by Olivia St. Clair Long on 3.9.23

In the legal world, the term “service” is short for “service of process,” and it refers to the formal legal notice that is required when a party files any lawsuit, including a divorce. This is a critical step in the legal process, as it ensures that all parties are properly informed of the legal action being taken against them and have the opportunity to respond.

In this blog post, we will take a closer look at the legal concept of service of process, including its definition, purpose, and requirements. We will explore the different methods of service that are available, as well as the rules and regulations that must be followed in order for service to be considered valid. Additionally, we will discuss some of the common challenges and pitfalls that can arise during the service of process, and offer some tips and strategies for avoiding or overcoming these issues.

Why is understanding the concept of “service” important?

Service is very important, because the court needs jurisdiction over every person and all of the property that it makes decisions about. Therefore, a case cannot move forward without official, proper service. The “process” referred to in “service of process” means 1) a copy of the complaint/petition that has been filed by the plaintiff/petitioner, which describes what they want from the court and the reasons they should get it; 2) a copy of a summons, a form the plaintiff/petitioner files with the court which lets the party being sued know important information. Service of process is governed in this state by Section 2-201 of the Illinois Code of Civil Procedure, 735 ILCS 5/2-201. Service rules are different in every state, and in every country.

Here are some examples of proper service of a respondent in Illinois family law case:

  1. A special process server, or the sheriff, gives the summons and petition to the respondent personally. The special process server or sheriff will then sign an affidavit of service with the time, date, and details of the service. This affidavit needs to be filed in court by the plaintiff/petitioner. When it is, proper service is proven, and the case can move forward. The respondent still needs to file an appearance to participate in the case, and may be subject to a default judgment if they do not do so.
  2. The petitioner personally gives the respondent the summons and petition together with a form called a Notice and Waiver of Service. The respondent signs the Notice and Waiver of Service and the petitioner files it in court. That Notice and Waiver of Service indicates that the respondent has received notice of the petition and has waived their right to be served formally. Once this is filed, the waiver of proper service is proven, and the case can move forward. The respondent still needs to file an appearance to participate in the case, and may be subject to a default judgment if they do not do so.
  3. The respondent gets an attorney and authorizes the attorney to accept service on their behalf. In this case, the petitioner’s attorney sends the summons and petition to the respondent’s attorney via email or US Mail. The respondent’s attorney then replies to say they got it, and files an appearance on behalf of the respondent. Once this appearance is filed, there is no question that service is complete.
  4. The petitioner is serving a business, perhaps a business owned by the respondent. The petitioner looks up the business on the Secretary of State’s website, and sends whatever needs to be served via certified mail to the registered agent of the business. If the green certified mail card comes back indicating that the business was served, the petitioner can prove that service was complete. 735 ILCS 5/2-204.

What happens if your respondent is out of state?

There are special rules for how to serve respondents who are not in the same state where the action is filed. Most states, including Illinois, participate in the Uniform Interstate Depositions and Discovery Act (“UIDDA”). This law makes it easier than in years past to serve a party who is out of state. Some states, like Texas, do not participate in UIDDA, and there are complicated rules for serving people in those states. If a respondent has an attorney who will accept service for them, or the respondent will voluntarily file his appearance and participate in the suit, this is not a problem. If, on the other hand, the respondent has no desire to participate, your case can be extended for months (or even years) while you try to get proper service. There are many businesses with the specific job of assisting litigants in serving out-of-state people or business entities. It is often worth it to check out one of these businesses, since they repeat this process constantly and know how to do it right. Businesses, in general, are relatively easy to serve because generally, they must have someone available to accept service in the state if they do business in the state (a “registered agent”).

What happens if your respondent is out of the country?

Some countries are easier to serve people in than others. Many countries participate in the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters. This law provides uniform rules for the service of process in the countries that participate. As with out-of-state service, it is often a good idea to consult one of the many businesses specializing in service of process globally.

What happens if you cannot get the respondent served?

In an Illinois family law case, you have one last option: service by publication. 735 ILCS 5/2-206. Service by publication means that after a diligent search, you cannot locate the respondent to serve them. In this case, you can follow the rules of the Illinois Code of Civil Procedure and ask the court to allow you to “serve” the respondent by putting a notice in a newspaper in the area where the lawsuit was filed. In Chicago, this publication is done in the Chicago Daily Law Bulletin, from an office in the Daley Center where a petitioner would take their publication order from the court. When a party is served by publication, the court can only make certain decisions. For example, the court can enter an order divorcing the petitioner and the respondent, but cannot divide their property, because service by publication does not give the court complete jurisdiction over everything at issue in the case. It is a failsafe option.


What’s next?

Whether you are a plaintiff seeking to initiate a legal action, or a defendant who has been served with legal documents, understanding the ins and outs of service of process is essential for navigating the legal system effectively. Even though you may have a better understanding of this critical legal concept now, the family law specialists at O. Long Law are ready to help you navigate what lies ahead.

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