Hi Superman635m
I am an attorney in another state and at first glance this looked
pretty straight forward - it was a lot more involved that I first
thought! BUT, I have the answer, and here it is (I have summarized
all of this in the section titled "HERE?S WHAT IT BOILS DOWN TO"
below):
There is no unique of special paperwork required due to the fact that
your husband is a citizen of Canada.
There MAY be an issue in having him served with the paperwork that you
have been filling out, now that he is outside the Commonwealth.
When you go to the courthouse and file your complaint and the other
papers that are required, they will present you with a ?Summons.?
That Summons must be served upon your husband.
Here are the important provisions of Rule 4 of the Massachusetts Rules
of Civil Procedure (you want to focus on part (e)- I have capitalized
the key provisions for you):
(a) Summons: Issuance. Upon [filing your complaint] the plaintiff
shall deliver a copy of the complaint and a summons for service?. The
summons may be procured in blank from the clerk, and shall be filled
in by the plaintiff in accordance with Rule 4(b).
(b) Form. The summons shall bear the signature or facsimile signature
of the clerk; be under the seal of the court; be in the name of the
Commonwealth of Massachusetts; bear teste of the first justice of the
court to which it shall be returnable who is not a party; contain the
name of the court and the names of the parties; be directed to the
defendant; state the name and address of the plaintiff's attorney, if
any, otherwise the plaintiff's address, and the time within which
these rules require the defendant to appear and defend; and shall
notify him that in case of his failure to do so judgment by default
may be rendered against him for the relief demanded in the complaint.
(c) By Whom Served. Except as otherwise permitted by paragraph (h) of
this rule, service of all process shall be made by a sheriff, by his
deputy, or by a special sheriff; by any other person duly authorized
by law; by some person specially appointed by the court for that
purpose;
OR IN THE CASE OF SERVICE OF PROCESS OUTSIDE THE COMMONWEALTH, by an
individual permitted to make service of process under the law of this
Commonwealth or under the law of the place in which the service is to
be made, or who is designated by a court of this Commonwealth. A
subpoena may be served as provided in Rule 45. Notwithstanding the
provisions of this paragraph (c), wherever in these rules service is
permitted to be made by certified or registered mail, the mailing may
be accomplished by the party or his attorney.
(d) Summons: Personal Service within the Commonwealth. The summons and
a copy of the complaint shall be served together. The plaintiff shall
furnish the person making service with such copies as are necessary.
Service shall be made as follows:
(1) Upon an individual by delivering a copy of the summons and of the
complaint to him personally; or by leaving copies thereof at his last
and usual place of abode; or by delivering a copy of the summons and
of the complaint to an agent authorized by appointment or by statute
to receive service of process, provided that any further notice
required by such statute be given. If the person authorized to serve
process makes return that after diligent search he can find neither
the defendant, nor defendant's last and usual abode, nor any agent
upon whom service may be made in compliance with this subsection, the
court may on application of the plaintiff issue an order of notice in
the manner and form prescribed by law.
(e) PERSONAL SERVICE OUTSIDE THE COMMONWEALTH. WHEN ANY STATUTE OR LAW
OF THE COMMONWEALTH AUTHORIZES SERVICE OF PROCESS OUTSIDE THE
COMMONWEALTH, THE SERVICE SHALL BE MADE BY DELIVERING A COPY OF THE
SUMMONS AND OF THE COMPLAINT: (1) IN ANY APPROPRIATE MANNER PRESCRIBED
IN SUBDIVISION (D) OF THIS RULE; OR (2) IN THE MANNER PRESCRIBED BY
THE LAW OF THE PLACE IN WHICH THE SERVICE IS MADE FOR SERVICE IN THAT
PLACE IN AN ACTION IN ANY OF ITS COURTS OF GENERAL JURISDICTION; OR
(3) BY ANY FORM OF MAIL ADDRESSED TO THE PERSON TO BE SERVED AND
REQUIRING A SIGNED RECEIPT; OR (4) AS DIRECTED BY THE APPROPRIATE
FOREIGN AUTHORITY IN RESPONSE TO LETTERS ROGATORY; OR (5) AS DIRECTED
BY ORDER OF THE COURT.
(f) RETURN. THE PERSON SERVING THE PROCESS SHALL MAKE PROOF OF SERVICE
thereof in writing to the court promptly and in any event within the
time during which the person served must respond to the process. If
service is made by a person other than a sheriff, deputy sheriff, or
special sheriff, he shall make affidavit thereof. Proof of service
outside the Commonwealth may be made by affidavit of the individual
who made the service or in the manner prescribed by the law of the
Commonwealth, or the law of the place in which the service is made for
proof of service in an action in any of its courts of general
jurisdiction. When service is made by mail, proof of service shall
include a receipt signed by the addressee or such other evidence of
personal delivery to the addressee as may be satisfactory to the
court. Failure to make proof of service does not affect the validity
of the service.
(j) Summons: Time Limit for Service. If a service of the summons and
complaint is not made upon a defendant within 90 days after the filing
of the complaint and the party on whose behalf such service was
required cannot show good cause why such service was not made within
that period, the action shall be dismissed as to that defendant
without prejudice upon the court's own initiative with notice to such
party or upon motion.
The entire text of Rule 4 is here: http://www.lawlib.state.ma.us/mrcp4.html
Although this handy webpage is from Suffolk County, the procedures of
what to file are the same:
http://www.probatecourtiannella.com/SelfHelpBrochures/ComplaintFor1BDivorceDV05.pdf
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HERE?S WHAT IT BOILS DOWN TO:
A. File your complaint and the necessary additional documents.
B. The clerk will give you a summons ? fill out what you need ? the
clerk will almost certainly fill out much of it.
C. Have the clerk give you a blank ?proof of service? (for the
?return? discussed in Rule 4(f).)
D. Mail the summons and complaint to your husband by International
Registered Mail ? follow the instruction in the State Department link
below.
E. When you get the receipt back from the post office indicating that
your husband was served, attach it to the Proof of Service and file
that document with the court clerk.
Here is the U.S. State Department guideline on service of process in Canada:
http://travel.state.gov/law/info/judicial/judicial_682.html
Here is the U.S. Postal Service information about International Registered Mail:
http://pe.usps.com/text/imm/immc3_003.html
You can avoid all of this if your husband happens to be in the
Commonwealth and just signs the Summons and the Proof of Service
indicating that he has accepted service.
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The bottom line to all of this is that the court has to be certain
that your husband has actual knowledge of the divorce being filed and
has adequate notice to show up, or not.
Other than the Summons and Proof of Service, it sounds as if you?re all set!
Good Luck,
Weisstho-ga
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Search Strategy:
Massachusetts Court Rules
Rules of Civil Procedure ? Massachusetts
Letters Rogatory
Letters Rogatory Canada
International Registered Mail + USPS
Department of State + Service of Process |
