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Serving the papers

 

Once you file your case, you have to "serve" the court papers. It is not enough to call the person on the phone and tell him about the case.  The court will need proof that he knows about the case.  "Serving" is delivering court papers to the defendant that tell him:

  • who is taking him to court,
  • what the case is about,
  • court dates,
  • when he needs to answer, and
  • if you are filing for divorce or separate support, about the automatic restraining order.

You serve a copy of the summons that you got when you filed the case.  The summons says

  • who is taking the defendant to court,
  • what the case is about,
  • when the defendant needs to answer, and
  • to whom he needs to answer.

Here is a sample summons.

How do I serve the complaint and other court papers?

Find your local  sheriff or constable and give him or her:

  1. the summons;
  2. the approved Affidavit of Indigency (be sure to write on it that you need the state to pay the service fees). The Affidavit of Indigency is for the sheriff or constable. It  tells the sheriff or constable to bill the state for his or her fees;
  3. a copy of the Complaint; and
  4. a copy of the Affidavit Disclosing Care or Custody Proceedings, if you had to file one. 
  5. The "Automatic Restraining Order" in a divorce or separate support case.

How does the other party get served?

If you know the person you are serving will sign the summons

You do not need to use a sheriff or constable if the person you are serving will sign the summons. You can just mail or give the papers to the person you are serving, but he must sign the section of the summons that says he got the papers.  If he agrees to sign the summons, it is called "accepting service." The person you are serving will have to get his signature "notarized". He will have to sign the summons in front of a notary public. Most banks have a notary public. "Accepting service" is not agreeing to a divorce or anything else. It is only signing a receipt for the papers. Ask him to send the signed, notarized summons back to you. Make a copy of the signed summons and give the original to the clerk at the court for filing. Filing the signed summons is called "return of service."

Serving someone who is out of state

If the person you are serving lives out of state, you can send him the papers by certified mail. But it might be better to get a sheriff to serve him where he lives. Your local sheriff's office should be able help you find the sheriff’s office where the person lives. If you have an approved Affidavit of Indigency, make sure that the out of state sheriff is willing to bill the state of Massachusetts for his services. You might have to call a few different places to find a sheriff who will accept your Affidavit of Indigency and bill the state of Massachusetts.

Serving someone whose address you do not know

If you do not know where the person you are serving lives, you will have to ask the court for permission to serve him by "publication and mailing." This means publishing the summons in a newspaper for a certain number of weeks and then mailing it to the person's last known address. Check with the court clerk to find out how to do this. Ask the clerk which newspaper to publish the summons in. This depends on the kind of case and the court you are in.

If you are not sure the person you are serving will sign the papers, but he lives in Massachusetts and you know his address .

  1. Find your local  sheriff or constableand give him or her:
    1. the summons,
    2. the approved Affidavit of Indigency (be sure to write on it that you need the state to pay the service fees). The Affidavit of Indigency is for the sheriff or constable. It  tells the sheriff or constable to bill the state for his or her fees;
    3. a copy of the Complaint; and
    4. a copy of the Affidavit Disclosing Care or Custody Proceedings, if you had to file one. 
    5. The "Automatic Restraining Order" in a divorce or separate support case.
  2. The sheriff or constable will give the papers to the person you are taking to court.
  3. After the sheriff or constable serves the papers, he or she returns the original summons to you.  On the summons the sheriff or constable fills out, dates, and signs the section called "Proof of Service".
  4. The next step for you is to return the signed original summons to the court.  This is called making "return of service."  Take the summons back to the court as soon as you get it from the sheriff.  It is proof that the other person has the papers that tell him about the case. Be sure to make a copy of the signed original summons for your records.

 

Important

In a 209A protective order case, the police will serve the papers on the abusive person. You do not have to serve them or get a sheriff or constable to serve them.

What happens after I return the summons to the court?

The person you are taking to court has to file an Answer to your complaint. The summons tells him how much time he has to answer. In most cases, he has 20 days from the time he gets served with the papers. In contempt cases, he has 7 days to file his Answer.

When you return the summons to the court, the clerk looks to see if any court date has been scheduled. 

If no court date has been scheduled, the clerk will schedule a "Case Management Conference" and send you notice of it.  The Case Management Conference will be at least 30 days after you file "return of service".

At the Case Management Conference the next court date will be assigned.

If a court date has been scheduled for a motion for temporary orders, the clerk will not schedule a Case Management Conference when you return the summons to the court.

If you file any Motions for Temporary Orders, the date you scheduled for the hearing might be before the other person files his Answer. 


Produced by an AmeriCorps Project of Western Massachusetts Legal Services updated and revised Massachusetts Law Reform Institute
Last updated November, 2011


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