What can I do if my ex-husband denies being served divorce papers?

Question

In my recent divorce, I had my husband personally served by a third party and gave the court the signed affidavit of service. The divorce was finalized but now he claims he was never served and says he is going to contest it. Would the court even consider such a claim?

Dave Hawkins · Answer

Not really unless he can prove that the process server lied.

Harry Roth · Answer

Consider it? Sure. Grant it? Probably not.  Here is the thing. Talk to your former husband.

Ask him to read the divorce papers over very thoroughly and tell you exactly what he does not like about them.

If he has a legitimate point, then negotiate a new deal and both of you sign it and submit it to the judge as an amended divorce. If he has no point, he is just whining, then tell him to file whatever papers he likes.

Suzanne H. Lombardi · Answer

Whether the court will entertain such a claim depends on a variety of circumstances.  If the court signed the affidavit of service he may have difficulty proving that he was not served.  An attorney can help navigate this issue if he in fact contests the divorce.

Dorothy Spinelli · Answer

If he was served properly, which it appears he was, typically that would not be a valid defense or claim.  Best of Luck.

Steven Alpers · Answer

It would hear his claim but if you have the 3rd party write a declaration and appear at court, if necessary, unlikely to start over.

Melvin Franke · Answer

Yes, but he will lose if the service is good.

Dean Esposito · Answer

Yes, but he would have to prove his case. The third party would testify that he did serve Him and your husband would lose.

George Seide · Answer

He might get a hearing, but the party who served him will testify and there should be no problem.

Gregory Crain · Answer

Yes but prove it by having the 3rd party testify.

Leonard A. Kaanta · Answer

Probaly not, the proof of service says he was served.

Anthony Roach · Answer

If it's timely. He's going to need really good grounds to set aside his default. You may want to speak to an attorney at length, to see if his motion may have any merit.

Barbara Peyton · Answer

Your husband has the burden of proving he was never served.  The court would consider it but if the division of property, etc is fair in the divorce judgment, the court will probably not set the judgment aside. You might need a lawyer for this if your ex-husband files a motion to set aside the judgment.

Dennis Leffert · Answer

It is not possible to second guess the Court, but if a third party served the papers and signed a proof of service; with no other facts, I don't see why the Court would rule in favor of your husband.  Perhaps he is trying to scare you into something.  My suggestion is for you to proceed with the divorce and see what happens.

John Rivers · Answer

In Georgia a party can attack a judgment in a number of ways. You need to speak with the lawyer who represented you in the divorce and make sure that he is aware of the situation.

Dennis P. Mikko · Answer

It may well be past the time he could contest service.  If there is a valid proof of service on file, the Court will require him to show he was not served.  The person who served process could testify as to what was done, where it was done and when.  You ex-husband will have a hard time proving non-service.

Willie Stephen Graves · Answer

Sure, he can move for new trial or what's called a "bill of review" (if the decree is more than 30 days old) on the basis that he was never served, but if your process server was authorized under law to serve him, the sworn return will be hard to overcome.

Frances Headley · Answer

Unless facts are presented that show that he was not served and had no knowledge of the action, the court is not likely to set aside the action.  You should consult a family law attorney to review all of the paperwork and advise you how to proceed.

Michael Yeksavich · Answer

If a Decree was entered he may have a difficult time having it set aside if there was proper service.

Monica H. Donaldson Stewart · Answer

If he was served by a licensed process server, then the affidavit of service should be sufficient to rebut his claim that he wasn't served; however, if he was served by an "unlicensed" third party, the service may not be valid and he may have grounds to challenge it.

Tajara Dommershausen · Answer

No, if he was served and the affidavit is in the court file, he is out of luck.

Timothy Byrne · Answer

It will be a swearing match between the process server and you husband.

Eric Smith · Answer

Talk is cheap. Appeals are expensive. If you used a well-established process server, they tend to do well when testifying against aggrieved parties - especially if the aggrieved party is lying. 

Your ex-spouse has the right to appeal the order within 30 days of signing, but he has a very small chance of succeeding without an attorney, and from what you describe, an only slightly better chance with one.

Robert Merlin · Answer

May consider it, but probably will not do what he wants. Let him make a move. In the meantime, live by the terms of the final judgment.

Jane Ginsburg · Answer

If you have the proof of service, probably not.

John Brennan · Answer

Not likely, but the person who serviced him may have to testify.

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What can I do if my ex-husband denies being served divorce papers?

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