How to serve a defendant in a Probate and Family Court case

After you file a complaint at the Probate and Family Court, you have to “serve” the person you are taking to court. Usually service is done by a sheriff or constable, but you have to arrange for the sheriff or constable to make the service.

Serving is the formal way to tell another person you are taking them to court. That person is the “ defendant .” You are the " plaintiff ."

If the defendant doesn't live in Massachusetts, you serve them the same way as if they live in Massachusetts. But you need to find a process server from the area where the defendant lives or works.

What papers will the court give me when I file a case?

When you file a case, the clerk gives you

  1. a Track Assignment Notice and
  2. a " summons " to serve on the defendant .

The Track Assignment Notice tells you:

The summons tells the defendant:

  1. you have started a case,
  2. what the case is about,
  3. the number of days the defendant has to answer, and
  4. if the defendant does not answer, there will still be a hearing and the judge will make a decision. The court will not wait for the defendant to answer.

The Probate and Family Court uses 3 different summons forms.

Each summons is for a different kind of case and has different rules for serving.

Divorce/Separate Support Summons - for

Domestic Relations Summons - for

Contempt Summons - for Complaint for Contempt.

Important

In a 209A restraining 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.

Why do I have to serve the defendant?

The defendant has the right to come to court and present their side of the story.

The judge can only decide your case if you have served the defendant.

You must follow the rules for telling the defendant you are taking them to court. If you follow these rules, and the defendant still doesn’t come to court, your case can go forward without them.

How much does it cost to serve the defendant?

Serving court papers on the defendant costs money.

If you cannot afford these costs, you can file an Affidavit of Indigency.

If the court approves your Affidavit of Indigency, you will not have to pay to serve the defendant.

What if the defendant is willing to sign the summons?

If you know the defendant will sign the summons , you do not need to use a sheriff or constable to serve them. You can just mail or give the papers to the defendant. Ask them to:

Make a copy of the signed summons and give the original to the clerk at the court for filing. The court will not proceed with your case, or schedule any hearings, until you file this signed summons with the court.

Important

"Accepting service" is not agreeing to a divorce or anything else. After the defendant accepts service, return the summons to the court. Then the judge can decide the case even if the defendant does not come to court.

What do I send the sheriff or constable who is serving the defendant?
  1. a copy of the complaint ,
  2. the summons ,
  3. the Track Assignment Notice,
  4. a copy of the Affidavit Disclosing Care or Custody Proceedings, if you had to file one.
  5. the "Automatic Restraining Order" if the case is a divorce or separate support case.
    1. An Automatic Restraining Order in a divorce or separate support case is not the same thing as a 209A domestic violence restraining order. Learn more about Automatic Restraining Orders.
    How does the sheriff or constable serve the defendant?

    The sheriff or constable will:

    1. Give a copy of the summons , complaint , tracking notice, Affidavit Disclosing Care (if there is one), and the “Automatic Restraining Order" (if there is one) to the defendant in person.
      1. In cases that are not complaints for divorce of for separate support, the sheriff or constable can also leave copies of the papers at the defendant’s last known address, and mail copies to the defendant by certified mail “return receipt requested.”
      1. if the process server gave the papers to the defendant in person “by hand”, or
      2. if they mailed the summons to the defendant and also left it at the defendant’s last known address,
      What do I do if the sheriff or constable gives me the proof of service?

      If the sheriff or constable gives you the proof of service, make a copy of the Proof of Service and give the original to the court, right away.

      Returning the original summons with Proof of Service is called “return of service.” Check with the sheriff to see if they will file return of service for you or if you must file it with the court yourself.

      Important

      It is your responsibility to make sure the original summons with Proof of Service is filed. The court will not proceed with your case, or schedule any hearings, until you or the process server has filed the return of service.

      What if the sheriff or constable cannot serve a Divorce or Separate Support summons on the defendant?

      Unlike other kinds of probate court cases, a sheriff or constable cannot leave a complaint for divorce or separate support at a defendant ’s last known address. If they cannot find the defendant, they should:

      • explain in the Proof of Service what they did to try to find the defendant, and
      • return the summons to you.

      You can ask the court for an “Order for Service by Alternate Means.” This order allows you to serve the defendant by publishing the summons in the newspaper and mailing it to a last known address. See Alternate service: how to serve a defendat if you can't do it in person.

      serve-no-address How do I serve the defendant if I don’t have their address?

      If you do not have any address for the defendant , and you are asking the court to establish paternity or child support, you can consider asking the Department of Revenue Child Support Enforcement Division for help.

      DOR/CSE has parent locator services.

      The court usually needs proof that the defendant has been notified about the case before it establishes paternity or child support.

      Or, contact the sheriff or constable's office and let them know. They may be able to work with you to find a way to serve the defendant in person.

      You may be able to serve a defendant by alternate means, like a notice in the newspaper, if you don’t have their current address but you do know the general area where they live or have recently lived. See Alternate service: how to serve a defendat if you can't do it in person.

      This can be complicated. Try to talk to a lawyer.

      How many days do I have to serve a summons in a family law case?

      It depends on the type of case.

      Divorce and separate support summons

      You have 90 days after you file a

      • Complaint for Divorce or
      • Complaint for Separate Support

      to serve a Divorce / Separate Support summons.

      Domestic relations summons

      You have 90 days after you file the complaint to serve a Domestic Relations Summons.

      The Domestic Relations Summons is for

      • Complaints to Establish Paternity
      • Complaints for Support-Custody-Parenting Time for unmarried parents
      • Complaints for support of a spouse or a child of married parents
      • Complaints for Modification

      Contempt summons

      You must serve a Contempt Summons at least 7 days before the hearing date on the summons.

      The Contempt Summons is for Complaints for Contempt only.

      How do I find an out of state process server if the defendant does not live in Massachusetts?

      If the defendant lives out of state and you know their home or work address:

      • Ask a sheriff's office in the county where the defendant lives or works to help. They might be able to serve the defendant, or help you find a process server where the defendant lives or works. Or,
      • Search online to find someone to serve the summons . Put the words “process server” and the name of the state or country where the defendant lives.

      When you file a case, the clerk gives you

      1. a Track Assignment Notice and
      2. a "summons" to serve on the defendant.

      The Track Assignment Notice tells you:

      • You have to serve the defendant,
      • The number of days you have to serve the defendant,
      • You need to return "proof of service,"
      • If you do not serve the defendant, the judge may dismiss your case, and
      • The most time that should go by before the case goes to trial, is settled, or dismissed. Although the goal is to finish the case in this time frame, cases often take more time than originally stated on the Track Assignment Notice.

      The summons tells the defendant:

      1. you have started a case,
      2. what the case is about,
      3. the number of days the defendant has to answer, and
      4. if the defendant does not answer, there will still be a hearing and the judge will make a decision. The court will not wait for the defendant to answer.

      The Probate and Family Court uses 3 different summons forms.

      Each summons is for a different kind of case and has different rules for serving.

      Divorce/Separate Support Summons - for

      • Complaint for Divorce or
      • Complaint for Separate Support.

      Domestic Relations Summons - for

      • Complaint to Establish Paternity
      • Complaint for Support-Custody-Parenting Time for unmarried parents,
      • Complaint for support of a spouse or a child of married parents, or
      • Complaint for Modification.

      Contempt Summons - for Complaint for Contempt.

      Important

      In a 209A restraining 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.