This question concerns two different issues – service of process and the ultimate resolution of the case.
At the start of a divorce case, the filing party has an obligation to serve the other party with the paperwork. Service can be accomplished through a variety of ways. In most cases, one party will send the other party the paperwork via certified mail to ensure that they have verification that the person received the documents.
In a few cases, the parties are still living together. In that situation, the paperwork must still be signed by the non-filing party.
We’ve had a few cases where our own client inadvertently signed our initial paperwork for the other party which clearly will not count as notice to them of the filing. If the non-filing party is living with someone, then acceptance by a person living in the household will generally constitute good service because any person accepting service has an obligation to get the papers to the proper party.
We generally prefer not to serve a person at their place of employment unless it is necessary. This tends to create a lot of mistrust because the receiving party thinks that the filing party is doing this to embarrass them at their place of employment. Likewise, we generally avoid having a person served by the sheriff’s office unless a person is actively trying to deny service.
In a few cases the parties agree that the non-filing party will simply come by our office and sign an acknowledgment of service to avoid the potential problems described above.
No. A party does not have to be physically handed the paperwork.
Based upon television and the movies, some people believe that the papers have to be physically placed in their hands for service to count, which is not the case. If the sheriff comes by to serve papers on someone and they are not present, then generally the sheriff leaving the paperwork at the residence will still count as service.
The second issue is related to resolving a divorce. At times, one party believes that the parties have reached an agreement on all issues and someone has prepared a document for everyone to sign. Unfortunately, the court cannot compel someone to enter into a settlement agreement. Until a party signs an agreement, the parties’ verbal discussions about settlement or exchange of emails generally do not create a binding agreement.
If a party refuses to negotiate at all, however, a party may ask for mediation or the court may order mediation. Mediation would generally require a party to participate in settlement discussions even though neither party would actually be required to make a proposal. If mediation is unsuccessful, then ultimately a party may be forced to file a motion for a final hearing to address these issues.
There are cases where a person is actively refusing to cooperate in a divorce because they don’t want the divorce or they believe that there is a chance that that if they delay matters that there is still a chance for reconciliation. Almost all of these cases ultimately require the court’s intervention to move the case along.
Indiana law generally indicates that a property settlement agreement may be binding at the time of execution, but the trial court has the discretion to reject an agreement as it relates to custody support or visitation because ultimately the court must look at the best interests of the child. The Indiana courts have recognized that a court could accept the parties’ agreement as it relates to property issues but reject the agreement as to child related issues.