Failure To Serve On Time

February 2, 2016 Pre Divorce

I received a question from a prospective client the other day on what to do about their divorce case. It seems that they filed, and either forgot or failed to follow through with proper service as required under Wisconsin law. Under sec. 801.02 (1) of the Wisconsin Statute, all papers must be served within 90 days of filing. Sec. 801.02 (1) reads as follows:

“COMMENCEMENT OF ACTION. (1) Except as provided in s. 20.931 (5) (b), a civil action in which a personal judgment is sought is commenced as to any defendant when a summons and a complaint naming the person as defendant are filed with the court, provided service of an authenticated copy of the summons and of the complaint is made upon the defendant under this chapter within 90 days after filing.”

What happens if you did not serve the papers as directed within 90 days? Sec. 801.15 (2) (a) reads as follows: “When an act is required to be done at or within a specified time, the court may order the period enlarged but only on motion for cause shown and upon just terms. The 90 day period under s. 801.02 may not be enlarged. If the motion is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect. The order of enlargement shall recite by its terms or by reference to an affidavit in the record for grounds for granting the motion.”
Under the family code, one can argue “excusable neglect” for asking the court for relief in failing to serve within the 90 day statutory period. Sec. 767.215 (4) (b) of the Wisconsin Statutes, reads as follows:

“EXTENSION OF TIME FOR SERVICE. (a) Except as provided in par. (b) and s. 767.815, extension of time is governed by s. 801.15 (2). (b) The court may, upon the petitioner’s demonstration of good cause, and without notice, order one additional 60-day extension for service of the initial papers in the action if the extension is made within 90 days after filing the initial papers. If the extension motion is not made within the 90-day period, the court may grant the motion only if it finds excusable neglect for failure to act and good cause shown for granting the extension.”

What is “excusable neglect?” Under Black’s law dictionary, the term is given to negligence that the defendant could not control the circumstances of.” From a practical perspective, what might constitute “excusable neglect?” Take a situation, where perhaps, the petitioner was ill and in and out of the hospital for the 90 days after filing and forgot to follow through with serving their spouse. Another situation may be that the person lived out of state, where their spouse lived within the state of Wisconsin, and perhaps was overseas on business or a family crisis where they forgot to follow through with serving papers within the 90 days of the filing of the divorce case. While no one can predict or promise under what circumstances the court may find “excusable neglect” sufficient to extend the 90 day time line for serving the divorce papers, under the appropriate circumstances and with permission of the court, an extension in the court’s discretion may be granted. Our office has successfully done it on several recent occasions with cases we have taken in where the petitioner initially was pursuing the divorce as a pro se litigant, and failed to serve the papers appropriately within the 90 day time frame as required under Wisconsin law. The worst case scenario if the court decides to refuse the extension to serve, would be simply to dismiss the first divorce action and immediately the next day, go ahead and refile a second divorce action, and this time, promptly proceeding by serving the divorce papers timely. A litigant can’t make the same mistake two times in a row!

Civil procedure in divorce cases can be a minefield when going at it alone. Contact one of the experienced divorce lawyers at Karp & Iancu, S.C. to help you navigate through it.

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