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RayAnswers, Lawyer
Category: Family Law
Satisfied Customers: 36378
Experience:  30 years as a family law lawyer .
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My wife and I both filed our own divorce case in separate

Customer Question

My wife and I both filed our own divorce case in separate courts. She left 3 weeks with my children while I was at work. Won't talk to me or tell me where they are. I hired a process server and had her served at her parents house. I filed for ex parte to get at least visitation while we wait for trial. She says she served me first. I was never served. The person she sent to serve me filled out a proof of service stating that on Sept. 29 at 8:43pm he personally handed me the papers at my home. I was at my sister's house at that time. Even the location history shows i was 3 cities away from my home. He actually came on Oct 3rd and left the papers on my door. My neighbor saw him knock for 2 min and then just left the papers on the door. She then texted me saying someone had just left divorce papers on my door. I don't want her designated court to have jurisdiction. Do you think I have enough to file a motion to quash on the basis that the server lied and never properly served me?
Submitted: 13 days ago.
Category: Family Law
Expert:  RayAnswers replied 13 days ago.

Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question and respond.

Expert:  RayAnswers replied 13 days ago.

Yes do affidavits to attache to the motion, one for you one for sister.If you have any receipts from that day attach them too.It all supports the motion.

Expert:  RayAnswers replied 13 days ago.


The within named person (Affiant), ______________________________, who is a resident of

____________________ County, State of ____________________, personally came and appeared

before me, the undersigned Notary Public, and makes this his/her statement, testimony and General

Affidavit under oath or affirmation, in good faith, and under penalty of perjury, of sincere belief and

personal knowledge that the following matters, facts, and things set forth are true and correct, to the best

of his/her knowledge:

"I was not served documents in this cause on this date.Specifically I was not at home but was at***** for the entire day and night and so on.

Dated this __________ day of ____________________ , 20______,


Signature of Affiant


State of ____________________

County of ____________________

Subscribed and sworn to, or affirmed, before me on this __________ day of ____________________,

20______ by Affiant ______________________________.


Signature of Notary Public


My Commission Expires:

Expert:  RayAnswers replied 13 days ago.

If your spouse has served you with a summons and petition for divorce or legal separation and you feel as though the court cannot exercise jurisdiction for one reason or another, you may need to immediately file a Motion to Quash. This motion will prevent the court from making any order in the case your spouse has filed for.

A Motion to Quash Service of Summons does not place into issue the merits of your spouse’s petition for divorce or legal separation. The only issue this type of motion brings forth for the court to determine is whether or not the court has personal jurisdiction over you in the case. Personal jurisdiction permits the court to make orders that affect you in a case to which you are a party. If the court does not have personal jurisdiction over you, then the court cannot make any orders against you or that affect you in the case.

A Motion to Quash Service of Summons must be filed and served within a 30-day period after you have been served with the summons and petition. A timely filed motion will not be considered as your general appearance, thus preventing the court to take personal jurisdiction over in the case. Additionally, a timely filed motion prevents your spouse to enter a default against you because you have not filed your response to the petition within the 30-day period. Plus, if the court denies your motion, because you filed the motion in a timely matter, the 30-day deadline to file your response is extended.

Expert:  RayAnswers replied 13 days ago.

Sample motion

I appreciate the chance to help you tonight.Thanks again and good luck here.

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