Complying with the 120-Day Service Rule When a Spouse is in Hiding From The Process Server

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When you file your action for dissolution of marriage, unless your spouse has waived or will waive formal service of process, you would need to get your spouse formally served with the divorce papers in order to move forward with your divorce action. Although it is quite typical for the Respondent spouse to get served fairly quickly, there are times when that is not the case. For instance, when the Respondent spouse goes into hiding to avoid being served with the divorce papers, not only does it stall your divorce action until the service of process is finally perfected, but it also requires you to become cognizant of the 120-Day service rule or risk having your dissolution of marriage action dismissed. So what is the 120-Day service rule?

Pursuant to Rule 1.070(j), “[i]f service of the initial process and initial pleading is not made upon a defendant [Respondent] within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff [Petitioner] shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period.” Florida Rule of Civil Procedure 1.070(j).

So when your Respondent spouse is in hiding, it is crucial to become and remain proactive in your attempts to locate your spouse for service, including engaging the services of a private process server and/or a private investigator. In other words, in order to show the Court good cause and excusable neglect for the delay in service, actual attempts to serve the Respondent spouse must be made and documented. Otherwise, your dissolution of marriage action will be dismissed. The Fifth District Court of Appeal in Root v. Little has specifically stated that “dismissal is required … if reasonable cause for the delay in service is not documented.” Root v. Little, 721 So. 2d 836, 837 (Fla. 5th DCA 1998) (internal citations omitted).

After all, the “120-Day” rule is quite clear – service beyond 120 days, even one day beyond, requires a dismissal unless the Petitioner spouse shows good cause for the late service. The 120-Day rule is a rule that is enforced on all plaintiffs/petitioners for the purpose of ensuring diligent prosecution of lawsuits. The Rule is in place to promote the orderly and efficient administration of justice. Consequently, being proactive is key to having the Court extend the time for service. The Fifth District Court of Appeal in Pixton v. Williams Scotsman, Inc. has expressly stated that “[i]f a plaintiff [Petitioner] shows good cause or excusable neglect, the court must extend the time for service and has no discretion to do otherwise.” Pixton v. Williams Scotsman, Inc., 924 So. 2d 37, 39 (Fla. 5th DCA 2006) (quoting Chaffin v. Jacobson, 793 So. 2d 102, 104 (Fla. 2d DCA 2001).

Accordingly, if your spouse is in hiding, don’t despair and, instead, actively pursue service through persistence, quick thinking and creativity.

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