Drafting, Serving, and Filing Initial pleadings as Petitioner

INITIAL PLEADINGS – IF WE ARE PETITIONER

For very first steps when we get any new custody/divorce action, see: New Divorce or Custody/PT – Initial Steps (New Client Checklist) – K|H Law Wiki

Drafting Initial Documents

We need to prepare the following documents once our client completes the intake (All of these are templates in MyCase, even the letter)

1. Summons
2. Petition
3. Certificate of representation
4. Confidential information form
5. Acknowledgement of Service (this will NOT be necessary if you are personally serving the documents. See below for more details)
6. Letter to accompany initial pleadings (there are a few variations of this letter in MyCase depending on if we are personally serving or sending acknowledgement of service)

We should have these documents drafted and ready for the client to review with 7-10 days of getting their completed intake. If you are in need of any additional information from the client to complete these documents, reach out to them via mycase or phone and request the information as soon as possible.

Make sure you are creating tasks along the way: Did client complete intake; draft initial pleadings; client provide additional info?; client answer questions?;

Review / Approval / Signature

Once you have completed drafting the documents, send them to the attorney for approval. Once approved by the attorney, upload & share the Petition, Summons, Cert of Rep, Conf Info Form, and Letter to mycase for client to review. Let them know the Petition is uploaded and ready for them to review. If they have questions you can certainly set up a call with the attorney or, if they approve the document as is, you can send it for their electronic signature. If there are any errors or changes requested, fix those before the client signs. If there are questions the client has, answer those prior to the client signing the document. Depending on if there are changes or questions, this usually takes 1-3 days. Don’t hesitate to schedule a call between the client and the attorney if there are lots of questions from the clients or they seem confused. We do not want them signing something they don’t understand. 

Once the client approves the documents, you will need to send the Petition for their electronic signature.

Make sure you are creating tasks along the way: Did attorney review/approve?; Did client respond re: initial pleadings?; did client sign initial pleadings?;

Serving Initial Documents

Once all the initial documents are drafted, approved, and the client has signed the Petition, we then need to serve the opposing party with all the documents noted above (EXCEPT THE CONFIDENTIAL INFORMATION FORM – THIS IS ONLY TO BE FILED WITH THE COURT). There are two ways achieve service:

• Acknowledgment of Service. This means we would mail all the initial pleading documents to the opposing party and he/she would sign a document acknowledging that they received the documents (not that they agree with what is in the documents) and then mail that document back to us. This generally takes about 1 – 3 weeks depending on how quickly the person signs and returns the document. If the other party is aware of the divorce and you’ve been working well together, this is a nice, lower conflict way to do service. If the person does not sign and return the document, then we would likely move on to serve via Personal Service.
• Personal Service. We would hire a process server to personally serve the opposing party with the initial pleading documents. The process server will likely show up to their home and personally hand them the documents. Personal service is quicker than acknowledgment of service because it does not rely on the other person to sign something and send it back. Personal service does cost about $75 – $125 depending on how many attempts have to be made. Personal Service usually takes 3-5 days.

Deciding on how to serve depends on the situation. Talk with the client and/or attorney to determine the best course of action. (How you are going to serve also impacts the letter you initially drafted, so be mindful of that when preparing that letter)

If you are mailing with Acknowledgment of Service – set a task about 10 days out to see if you’ve gotten the signed ack of service back from OPP. If you haven’t, follow up with client to see if they’ve heard anything from OPP and what their thoughts are on moving to personal service or giving it more time. At this point, we could try emailing the documents to OPP with a message that we could email the Ack of Serve to them to sign electronically. We could also try calling OPP to see if they received the mailing, if they plan to sign the ack of serv, if they’d rather we email it to them to sign electronically. The big thing here is that we don’t want to sit and wait for weeks if our client is anxious to get the case moving, so it’s important to get their input and also be speaking with the attorney about it and getting their input.

If you are sending for Personal Service – set a task about 5 days out to check with process server if you haven’t yet received the affidavit of personal service. If you haven’t, it’s fine to send a brief follow up email to the process server “Hey Lori – Can I get an update on service in the Smith case?” or something similar. Remember, if you are needing OPP served ASAP, then there are rush options available, but you need to indicate that in your initial email to the process server.

Make sure you are creating tasks along the way: Did client indicate how they want served?; Did OPP sign ack of serv?; Was OPP personally served? Answer & CP Due (DATE); Does attorney want to file case?

Filing Initial Documents

Initial pleadings cannot be filed until the OPP is formally served. This means we must either have the proof of service/affidavit of service from the process server OR have the signed acknowledgment of service from OPP. Not all cases will be filed immediately. Always consult with the attorney to determine if the case should be filed with the Court as soon as we have proof of service of if they’d rather wait.

What documents need to be filed –

1. Summons
2. Petition
3. Certificate of Representation
4. Confidential Information Form
5. Affidavit of Service (from process server) OR Acknowledgment of Service (signed by OPP)
6. *Custody / Petition cases, Recognition of Parentage (if our Petition indicates one has been signed). If you do not have this, you can still file the case with the documents listed above, just expect to get a deficiency notice and, in the meantime, work with your client to get a copy of the Recognition of Parentage.
7. YOU WILL ALSO NEED TO PAY THE INITIAL FILING FEE when you file the initial pleadings.