Alternate service: how to serve a defendant if you can't do it in person

Usually, when you start a case in the Probate and Family Court, you need to let the other side know by “serving” them with notice of the case. Most of the time, this service takes the form of a sheriff or constable giving the defendant the court papers in person.

If the sheriff could not serve the defendant with a Divorce /Separate Support Summons in person or if you do not know where the Defendant lives, ask the court to order Service by Alternate Means. This can include

• publishing the summons in the newspaper,
• maiingl the summons and complaint to the defendant at the last address you have for them, and
• other ways to let the defendant know about the court case that the court allows.

In general, you can file a Motion for Service by Alternate Means when it isn’t possible to serve the defendant in person. You will need to tell the court what steps you have taken to try to serve the defendant in person. You will also need to tell the court what steps you have taken to try to find the defendant.

Some examples of when you might ask for Service by Alternate Means include:

• You and the defendant had been living together. They have moved out, and you don’t know their new address.
• You haven’t seen the defendant in a long time. You know what town they used to live in, but you don’t have their current address.
• The sheriff has tried to serve the Defendant in person, but couldn’t find the defendant to give them the court papers. For Divorce and Separate Support cases, you have to get permission from the court to mail the court papers to the defendant instead of leaving the papers at the last known address.

In general, you can file a Motion for Service by Alternate Means when it isn’t possible to serve the defendant in person. You will need to tell the court what steps you have taken to try to serve the defendant in person. You will also need to tell the court what steps you have taken to try to find the defendant.

Some examples of when you might ask for Service by Alternate Means include:

• You and the defendant had been living together. They have moved out, and you don’t know their new address.
• You haven’t seen the defendant in a long time. You know what town they used to live in, but you don’t have their current address.
• The sheriff has tried to serve the Defendant in person, but couldn’t find the defendant to give them the court papers. For Divorce and Separate Support cases, you have to get permission from the court to mail the court papers to the defendant instead of leaving the papers at the last known address.

1. Use the Courthouse Locator to find the phone number. Or, contact the Probate and Family Court Virtual Registry to talk to someone by Zoom.
2. Ask the clerk which form you should use to serve the defendant you have been unable to serve in any other way. Most courts now use the Motion for Service by Alternate Means and Affidavit of Diligent Search. You can get this form from the Probate and Family Court website. But some courts might use an older form.

1. Call the newspaper and ask for the Legal Notices Department.
2. Ask the Legal Notices Department if they publish summonses.
3. Ask them how much they charge to publish the summons .
4. Ask them what you need to do to get a copy of the page that has the summons on it.This is also called a “tear sheet.”

At the top where it says

1. ”Case Name”, your name and v. the defendant 's name.
2. “Division”, put the name of the court where you filed your complaint .
3. “Docket No.”, put the docket number that is on the Summons .

To ask the court to allow you to give notice by publication in a newspaper, check the box that says you are asking the court to let you:

• Provide service by publication only in a newspaper of general circulation in the location that will most reasonably provide actual notice of this case.

Or, if you have an address for the defendant’ but haven’t been able to serve them in person, check the box that says you are asking the court to let you:

• Provide service by publication in a newspaper of general circulation in the location that will most reasonably provide actual notice of this case AND by mailing a copy of the notice by registered or certified mail to the person's last known address.

There is also a check box if you are asking to make service in a different way. This is less common.

The form asks you to give information about the defendant's last known address, if you know it. It also asks when you last had contact with the defendant.

In the section titled “Attempts to Locate,” explain what you did to try to locate the defendant, such as.

• phoning or texting,
• emailing,
• using social media,
• internet searches,
• and more.

The form also asks you to explain what steps you have already taken to try to serve the defendant.

Important

If it is not safe for you to take some of these steps to locate a defendant because of domestic abuse or any other reason, you can let the court know when you describe what steps you took to locate the defendant.

When you sign the form, you will need to swear that everything you have written in the form is true.
You may be able to get help filling out this motion form from the Court Service Center or Probate Court Lawyer for the Day.

1. On the page 2 of the Affidavit of Indigency, go to SECTION 2 and check the 4th box.
2. Where it says “Other fees or costs of $” put the amount that the newspaper charges to publish the summons , and
3. where it says “for (specify)” write “publishing the summons in the newspaper.”

Note

You can’t get the costs of publishing a summons in a newspaper outside of Massachusetts covered by an Affidavit of Indigency.

For more information on Affidavits of indigency, see How to Fill Out an Affidavit of indigency,

File the Motion for Service by Alternate Means and Affidavit of Diligent Search, and, If you need it, the Affidavit of Indigency. The clerk can

• approve your Affidavit of Indigency or
• send you to a judge to decide.

You can mail the Motion and the Affidavit in Support to the court. If you are filing an Affidavit of Indigency, it is better to go to the court and give the papers to the clerk.

If the judge decides that you can serve by publicatio, you will get

1. An Order for Service by Publication that orders:
   1. the defendant to respond to the complaint by the “return date”;
   2. that the court will schedule a hearing and make a decision even if defendant does not respond or show up;
   3. that the summons be published once in the newspaper named in the order;
   4. how many days before the “return date” the summons must be published; and
   5. that the summons be mailed to the last known address of the defendant by registered or certified mail.
   As soon as you get the Order from the court:

   1. Mail to the defendant ’s last known address a copy of:

   Mail by registered or certified mail, “return receipt requested.”

   2. Contact the Legal Notice Department at the newspaper. Ask them how they want you to send them the Summons and any other documents. They may want you to email them the information.

   3. If the newspapter is in Massachusetts, and the court approved your Affidavit of Indigency, ask the Legal Notice Department at the newspaper what you need to do so they get paid.

   After the newspaper publishes the summons:

   Get the page that has the summons on it. It has to be the whole page. It has to have the date and the name of the newspaper on it. This is also called a "tear sheet."

   After the post office sends you

   • the green return receipt with the defendant ’s signature on it, or
   • the returned unopenedenvelope with the green receipt card attached,

   fill out and sign the Return of Service at the bottom of the Order for Service by Publication.

   Go to the court and give the clerk:
   • the Order for Service by Publication with your signed Return of Service at the bottom;
   • the full dated page of the newspaper with the publication of the summons
   • the green return receipt with the defendant ’s signature on it, or the returned unopened envelope with the green receipt card attached.