Divorce Complaint Improperly Filed

DEFENSE OF AN IMPROPERLY FILED COMPLAINT FOR DIVORCE

Many times in my practice as a Family Law Counsel in Central Ohio I find that a complaint for divorce, legal separation or other post decree matter such as a motion for contempt of court or motion to modify the allocation of parental rights (custody) is filed improperly against a person who is living in outside of Ohio and in a foreign country. Under Ohio law when a person who is living outside of the United States is served with a complaint or other legal process there is a proper method by which to challenge the imposition of jurisdiction on such a person.
At the option of the party, Ohio Civil Rule 12(B) permits a party to challenge a court’s exercise of jurisdiction by way of a motion filed with the court. The Rule further provides that any motion under Ohio Civil Rule 12(B) can be made “Without consenting to the personal jurisdiction of the court.”

Ohio Civil Rule 4.5 sets forth the procedure for the service of a complaint for Divorce, complaint for legal separation or other post decree matter such as contempt of court, modification of support or the re-allocation of parental rights (i.e custody or shared parenting) when the Defendant is residing outside of the State of Ohio. Specifically Ohio Rules of Civil Procedure 4.5( A) requires that when the Defendant in a civil action resides in a foreign country and that country is a signatory to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents (and hereinafter referred to as the Hague Convention on Service) that the “service of the complaint shall be pursuant to a method allowed by the Articles of that Convention, including any method allowed by Article 8 or Article 10 to which the foreign country has not objected in accordance with Article 12.”

Role of the Hague Convention

The Hague Convention on Service provides in Article 3 for a procedure whereby documents from a Court are to be served upon a Defendant residing in a signatory country. Article 3 of the Hague Convention on Service provides that documents to be served are to be sent from “… the authority or judicial officer competent under the law of State in which the documents originate to the Central Authority of the State addressed a request conforming to the model annexed to the present convention, without any requirement of legalization or other equivalent formality. The document to be served or a copy thereof shall be annexed to the request. The request and the document shall both be furnished in duplicate to the Central Authority of the signatory country. The Hague Convention on Service also provides as a part of the Convention a list of contact information ( address, phone number, and if applicable email addresses) for the Central Authority for each country which is a signatory to the Hague Convention on Service. Absent a waiver of the provisions of The Hague Convention on Service a party filing either a complaint for divorce, legal separation or other post decree matters is required to strictly comply with the provisions of Article 3 of the Convention.

Civil Rule 4.5 (A) also provides that service on an individual living in a foreign country be pursuant to the Hague Convention on Service and “shall be pursuant to a method allowed by the Articles of the Convention, including any method allowed by Article 8 or Article 10 to which the country has not objected in accordance with Article 21. Article 8 of the Hague Convention on Service does allow for the service of documents through diplomats and consular agents. Article 10 of the Hague Convention subject to certain limitations does allow for the service of judicial documents by way of mail. Article 10 of the Hague Convention states as follows:

Article 10
Provided the State of destination does not object, the present Convention shall not interfere with

a) the freedom to send judicial documents, by postal channels, directly to the person abroad.

b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of destination.

c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officer, officials or other competent persons of the State of destination.

Article 21 of The Hague Convention on Service provides that a signatory to the Convention may object to the implementation of any portion of Article 8 or Article 10. Article 21 of the Hague Convention on Service states that “Each Contracting State shall similarly inform the Ministry (referring to the Ministry of Foreign Affairs of the Netherlands which is the repository of signatory’s accession to the terms or objections to the Convention) where appropriate, of an opposition to the use of methods of transmission pursuant to Article 8 and 10. Thus a signatory to the Convention can object or “opt out” of the Convention and not approve service of documents either by way of service by diplomats (Article 8) or by mail or other means (Article 12). The Hague Convention on Service as a part of the Convention provides a list of “ published declarations “ for each country which has not accepted the provisions of either Article 8 or Article 10(a)-(c). A thorough review of the “published declarations” of a particular country should be undertaken in which service is attempted by means other than those authorized by the Convention. If a signatory country has opted out of either Article 8 or Article 10 then any effort made to issue service other than through the provisions of the Convention on the out of country Defendant violates both the provisions of Civil Rule 4.5 (A) and the Hague Convention on Service and would be invalid.

Civil Rule 4.5 (A) requires that service of process of a complaint for legal separation or divorce be served upon a person living outside of the State of Ohio be pursuant to The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. A party seeking to evoke the jurisdiction of an Ohio Court should familiarize themselves with the provisions of Ohio Law regarding service of process as required by Civil Rule 4.5(A) and the Hague Convention on Service. The Law Firm of Gary J. Gottfried a Law Firm practicing in Columbus, Ohio, Delaware Ohio, Newark Ohio, Lancaster Ohio, Franklin County Ohio, Licking County Ohio, Delaware County Ohio, Knox County Ohio and Fairfield County Ohio as well as other counties in Central Ohio as the experience and expertise to assist clients in matters involving international divorce, custody, and other family law matters.