Legal Question in Family Law in California
what happens if I served (of course I didn't someone else did!) my ex through the us mail (as of Jan 1, 2011 it is now completely sufficient) a Notice of Deliquency and a Notice of Motion, Motion to Enforce a Settlement Agreement? He did not return the "Acknowledgment of Receipt..I do know he received the paperwork because he told both my sons, ages 19 & 17, that I was "suing him" and he was very upset. He is rarely even in LA County...a few days every couple of months...we are suppose to have 50% custody of the younger son still and he hasn't been around for years. I also served his attorney but they responded that they no longer represented him and sent me a letter to that effect. Is there anything I can prepare for the commissioner to show he was served and is always away? He is in the media almost daily documenting his where abouts. Thank you very much for any advice!
...I thought he would have his attorney as the ''attorney on record" myself...my ex always said he still retained him.....however, his attorney's office was kind enough to include to include the California Code that applied to my post judgement motion with the letter they sent to me...and not knowing I had served my ex, they told me I had not completed 'good service'
...the form I filled out for my Notice of Delinquency said I need to include a blank Application to Determine Arrearages and 2 copies of Acknowledgment of Receipt...which states if he did not return to sender within 20 days he would be liable for any costs associated with serving him ...
he did not return the form...he did receive the paperwork...would it be possible to have my older son, who is 19 as a witness to the fact that he did receive it, as he is no longer a part of the case?
1 Answer from Attorneys
You need to serve the moving papers by personal service to the opposing party because it is a post judgment matter. It is preferable to use either the sheriff or a registered process server to serve moving papers. If you use an unregistered person and the other side says they were never served, then it would be your burden to prove proper service. If you use a registered process server and the other side says they were not served, there is a presumption of proper service that the other side has to overcome. It's worth the minimal process server fees to have that presumption on your side. Here is my personal bias - too many people rope in family members to serve papers and even though they are not a party to the action, most family members have indeed taken sides and are biased. I would not use the parties' children to serve documents. It is not fair to the child no matter what age. I think it's a slap in the face to the other side to have their own child serve them. And whoever serves the papers runs the risk of being summoned into court and being grilled on whether they did indeed serve the papers as they swore under penalty of perjury. If they didn't do it right and said they did, then they may face perjury charges. So why bring your child into it? Pay the 25 bucks to the sheriff or 50 bucks to the process server and have it done right.
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