I recently met with a man (I'll call him John) whose wife wanted to divorce. He was very much against ending the marriage. He went to the office of his wife's attorney presumably to discuss settlement, but instead received his Wife's proposal for settlement set forth in a Summons and Petition. Over the next six months, he attempted to meet with his wife to discuss her proposal or alternatively what could be done to save the marriage.
Though the couple was “getting along” while continuing to live together, no meeting took place to discuss the divorce or the possibility of reconciliation. When John came to meet with me, a collaborative divorce attorney, he handed me two un-opened letters he recently received from the District Court.
The first was a notice for an Initial Case Management Conference (ICMC) court appearance which he had missed. The second, was a notice for a default hearing the next day to grant the divorce! At issue, was up to $50,000.00 that John would lose if the divorce was granted based on his wife's proposal in the Petition. Obviously, I advised John to appear at the default hearing and throw himself on the mercy of the court to delay the default hearing so he could participate in the divorce proceeding.
Regardless of whether or not John's version of the facts are completely accurate, it can be confusing to know if and when a legal proceeding is commenced. In Minnesota, a divorce action is commenced when you are personally “served” with a Summons and Petition for Dissolution of Marriage. “Service” is most frequently accomplished when a person over the age of 18 years old—who is not your spouse—delivers you a copy of a Summons and Petition signed by your spouse, now called the Petitioner. If the Petitioner is represented by an attorney, the documents are also signed by the attorney.
“Service” does not need to be done by the sheriff or police. It is frequently performed by private process servers. It can also be performed by your neighbor or a relative. The documents simply needs to be handed to you by a person over the age of 18 (but not your spouse) who later files an Affidavit with the Court swearing on that date he or she delivered to you a Summons and Petition. Once service on you has been made, the clock starts ticking as to when you must respond to the Petition. If you fail to respond appropriately, the Court can grant the Petitioner a divorce based on the proposal set forth in the Petition.
This is what happened to John. He did not realize he was officially served when the legal assistant at the attorney's office handed him a Summons and Petition. It was more confusing because the documents were not signed by the wife's attorney. Instead, the wife signed the documents “pro se”, meaning she was representing herself. It became even more confusing because the parties continued to live together and the wife made no mention that an ICMC court appearance was scheduled.
The wife appeared at the court hearing, but never mentioned to John that he had failed to show up, nor did she mention the default hearing date. Nevertheless, John was at risk of having the divorce granted by the court. Lesson learned: Consult with an attorney if you are not sure a legal action has been commenced and open your mail!
By contrast, this could not happen if John and his wife had agreed to use a collaborative process for their divorce. In a collaborative process, the parties agree to commence the divorce together by signing a Joint Petition. No service is necessary. Everybody knows what is going on. Everybody participates equally in reaching a settlement before the legal documents are drafted and filed with the court.
I have since learned that John appeared in Court at the default hearing. As a result, the Court continued the hearing so that John could participate in the divorce. Whew! That was a close one.