How to Recoup Costs of Attorney Fees and Process Server Fees against a Spouse or Party Who is ‘Dodging Service’

Posted By Austin Buerlein, Esq. On April 17, 2014

Frequently in any type of Family Law action, the Defendant will take extreme measures to "dodge" service, or, at least, delay effectuating service on him or her. This particularly applies for cases involving contempt (where a defendant may be facing incarceration for not paying child support - and they need the additional time to come up with their back support owed), or modification of child support action (where a Plaintiff may be entitled to a reduction in his child support obligation retroactive to the date of service, in some circumstances).

The expenses associated with having to track down and serve a slippery defendant may be hefty, including both attorney fees (associated with having to secure an order to appoint a process server, and take other measures to complete service), as well as the expenses of a process server (which typically range from $75 to $125 per hour). The expenses of serving that ex-spouse dodging service can even on occasion exceed the total costs of the rest of the litigation.

However, one tool available to divorce practitioners and litigants to mitigate this risk is OCGA 9-11-4(d), which is provided below. It holds that if a Plaintiff (or Plaintiff's lawyer) follows certain statutory protocols, he/she can send the Complaint to the Defendant by certified mail, and, if the Defendant fails to acknowledge service of the Complaint within 30 days, the Plaintiff may be ENTITLED, as a matter of law, to reimbursement for any and all costs associated with effectuating service (including attorney fees).

Again, however, in order to take advantage of this right, you must completely comply with the statute - i.e., simply mailing them the complaint with a cover letter asking them to acknowledge is not enough to take advantage of automatic right to recoup expenses.

Obviously, recouping both attorney fees and process server fees in a Domestic case can be a big benefit for any lawyer and his clients. And, given the regularity of delay in defendants complying with requests to acknowledge service, it is advisable for a good Family Law attorney to consider utilizing the statutory notice to a Defendant anytime a Complaint is filed on behalf of your client. In fact, in some circumstances, it may be advisable to consider still sending such a Statutory Notice even if you are having the sheriffs serve the complaint - in the abundance of caution, to start the clock for statutory right to recoup fees, in the event the sheriffs are unable to timely serve the Defendant (on one of their 2 to 4 attempts that they only typically are required to make, before returning the complaint as "non service").

Any fellow family law attorneys who would like a copy of the Notice form (in compliance with the statute), please email me at austin@browningsmith.com to request a copy.

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O.C.G.A. §9-11-4(d) provides as follows:

(d) Waiver of service.

(1) A defendant who waives service of a summons does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant.

(2) Upon receipt of notice of an action in the manner provided in this subsection, the following defendants have a duty to avoid unnecessary costs of serving the summons:

(A) A corporation or association that:

(i) Is subject to service under paragraph (1) or (2) of subsection (e) of this Code section; and

(ii) Receives notice of such action by an agent other than the Secretary of State; and

(B) A natural person who:

(i) Is not a minor; and

(ii) Has not been judicially declared to be of unsound mind or incapable of conducting his or her own affairs.

(3) To avoid costs, the plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons. The notice and request shall:

(A) Be in writing and shall be addressed directly to the defendant, if an individual, or else to an officer or managing or general agent or other agent authorized by appointment to receive service of process for a defendant subject to service under paragraph (1) or (2) of subsection (e) of this Code section;

(B) Be dispatched through first-class mail or other reliable means;

(C) Be accompanied by a copy of the complaint and shall identify the court in which it has been filed;

(D) Make reference to this Code section and shall inform the defendant, by means of the text prescribed in subsection (l) of this Code section, of the consequences of compliance and of failure to comply with the request;

(E) Set forth the date on which the request is sent;

(F) Allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent, or 60 days from that date if the defendant is addressed outside any judicial district of the United States; and

(G) Provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.

(4) If a defendant located within the United States that is subject to service inside or outside the state under this Code section fails to comply with a request for a waiver made by a plaintiff located within the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure is shown.

(5) A defendant that, before being served with process, returns a waiver so requested in a timely manner is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent, or 90 days after that date if the defendant was addressed outside any judicial district of the United States.

(6) When the plaintiff files a waiver of service with the court, the action shall proceed, except as provided in paragraph (5) of this subsection, as if a summons and complaint had been served at the time of filing the waiver, and no proof of service shall be required.

(7) The costs to be imposed on a defendant under paragraph (4) of this subsection for failure to comply with a request to waive service of summons shall include the costs subsequently incurred in effecting service, together with the costs, including a reasonable attorney's fee, of any motion required to collect the costs of service.

Tags: Attorney Fees and Expenses of Litigation, Divorce, Dodging Service