Challenge to Service of Process in Florida Divorce

By Michael P. Sampson (part 2 of 8)

Challenge to Personal Jurisdiction Service of Process. Fish caught in green fishing net.

Service of Process – Effective Service is Required

A corporation or trust a spouse names in a Florida divorce may first consider a challenge to service of process. Through effective service of process, the spouse notifies the business entity or trust of the spouse’s legal claims against it. When the spouse accomplishes effective service, a court may exercise its authority over the entity or trust if the court has jurisdiction to resolve the claims.

Challenge to Personal Jurisdiction. Service of Process. Hand with bouquet of colorful flowers

Service of Process: Can the Corporation or Trust Challenge Service?

An entity sued in a family law lawsuit may consider challenges to service of process. Proper service of the family law papers on the entity must happen before the Florida court can acquire personal jurisdiction over the entity. See Fla. Rule of General Practice and Judicial Administration 2.516Fla. Family Law Rules of Civ. P. 12.080(a) and 12.180

See also Thompson v. State/Dept. Revenue, 867 So. 2d 603 (Fla. 1st DCA 2004) (the court lacks jurisdiction without proper service of process, and the burden to prove proper service is upon the person who seeks to invoke the court’s jurisdiction).

Entry of an order adjudicating rights of a party not properly served is reversible error. See Deluca v. King, 197 So. 3d 74 (Fla. 2d DCA 2016) (default judgment entered against party not served with process is void); Varveris v. Alberto M. Carbonell, P.A., 773 So. 2d 1275 (Fla. 3d DCA 2000) (judgment debtor’s wife was not properly brought before the court to set aside allegedly fraudulent transfers).

Actual Notice of Lawsuit Is No Substitute for Proper Service of Process

Suppose a corporation or trust knows there’s a Florida divorce action pending and one spouse wants to pull in the entity. Is service of process still necessary? The answer is yes. The spouse must still properly serve the corporation or trust. Actual notice of a lawsuit doesn’t discharge a spouse’s burden to have the nonparty served with process. See In re: Trust of Wines, Case No. 5D22-1919 (Fla. 5th DCA February 3, 2023); Bedford Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225 (Fla. 1986)McDaniel v. FirstBank P.R., 96 So. 3d 926 (Fla. 2d DCA 2012)Moss v. Estate of Hudson, 252 So. 3d 785 (Fla. 5th DCA 2018)Shepheard v. Deutsche Bank Trust Co. Americas, 922 So. 2d 340 (Fla. 5th DCA 2006)Napoleon B. Broward Drainage Dist. v. Certain Lands Upon Which Taxes Due, 33 So. 2d 716 (Fla. 1948).

Did the Suing Spouse Properly Issue and Serve the Summons?

A summons, properly issued and served, is how a court acquires jurisdiction over an entity. See Seymour v. Panchita Inv., Inc., 28 So. 3d 194 (Fla. 3d DCA 2010). Defects in the summons may make service void. Id. (attempt to serve corporation with summons naming person individually was void to effect service on the corporation of which he was registered agent); Ineniera v. Freytech, 210 So. 3d 211 (Fla. 3d DCA 2016).

An entity, through sufficient affidavits, may challenge service and obtain a hearing to present evidence on the effectiveness of service. See Panama City Gen. P’ship v. Godfrey Panama City Inv., LLC, 109 So. 3d 291 (Fla. 1st DCA 2013) (affidavits supported partnership’s assertion that managing partner the process server’s affidavit identified as having been served moved from his home to assisted living nursing facility two days before alleged service).  

There are strict requirements for good service on the correct person.

A spouse who attempts to serve a foreign corporation not qualified to do business in Florida must show two things. First, the spouse must show compliance with the requirements for service. Second, the spouse must show service of process on a person qualified to accept such process.

Courts strictly construe statutory requirements and require strict compliance with them for effective service. See Grange Insurance v. Walton Transport, 2014 WL 1917987 *3, Case No. 3:13-cv-977-J-34MCR (M.D. Fla. May 13, 2014); Estela v. Cavalcanti, 76 So. 3d 1054 (Fla. 3d DCA 2011); Mecca Multimedia, Inc. v. Kurzbard, 954 So. 2d 1179 (Fla. 3d DCA 2007)S.T.R. Indus., Inc. v. Hidalgo Corp., 832 So. 2d 262 (Fla. 3d DCA 2002).  

Service of Process Under the Hague Convention

Failure to comply with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters articles 2-6, November 15, 1965, 20 U.S.T. 361 (Hague Convention), may invalidate service of process. See SDS-IC v. Florida Concentrates International, LLC, 157 So. 3d 389 (Fla. 2d DCA 2015) (service of process quashed because it did not comply with Florida law or China’s Central Authority under the Hague Convention). But note Article 10(a) of the Hague Convention permits service of process by mail. See Portalp International SAS v. Zuloaga, 198 So. 3d 669 (Fla. 2d DCA 2015).

Man on telephone.

Has the spouse validly served the right person under Florida law?

A corporation can’t make it impossible for a spouse to comply strictly with the statutory requirements by listing a private mailbox or “virtual office,” if there are no directors, officers, corporate employees, or registered agent there. Further, the entity can’t evade service by pretending to maintain a registered agent that section 48.091, Florida Statutes requires.

The party seeking service may serve such corporation under section 48.081(3)(b) at another physical address for the corporation, its officers, directors, or registered agent discoverable through public records, under the general service of process statute (section 48.031). See Diaz v. Winn-Dixie Stores, Inc., Case No. 14-cv-21045 (S.D. Fla. January 9, 2015) (setting aside a clerk’s default because attempted service at a local Winn-Dixie deli counter was not the corporation’s principal place of business, where its high level officers directed, controlled, and coordinated its activities); Natures Way Marine, LLC v. Everclear of Ohio, Ltd., No. 12-0316-CG-M (S.D. Ala. January 18, 2013) (applying Florida law); TID Services, Inc. v. Dass, 65 So. 3d 1 (Fla. 2d DCA 2010) (reversing order denying motion to vacate for lack of jurisdiction a default judgment, where summons was left at UPS store where defendant maintained a private mailbox).

Seek to challenge service of process if the spouse fails to serve an authorized person.

A court may quash improper service of process on someone not authorized to be served. See Seymour v. Panchita Inv., Inc., 28 So. 3d 194 (Fla. 3d DCA 2010) (affirming order vacating final judgment after default because attempted service on a corporate officer in his individual capacity was void).

See also S.T.R. Industries, Inc., 832 So. 2d at 264 (quashing service on a foreign corporation not qualified to do business in Florida because a party failed to show a diligent search for superior officers or the necessity for substitute service, and the process server’s affidavit failed to indicate the foreign corporation’s business agent was served because superior officers were absent); Lisa, S.A. v. Gutierrez, 806 So. 2d 557 (Fla. 3d DCA 2002) (affirming order quashing service on a receptionist or on a law clerk); Washington Capital Corp. v. Milandco, Ltd., Inc., 665 So. 2d 375 (Fla. 4th DCA 1996) (quashing service on a secretary/receptionist of a foreign corporation not in strict compliance with section 48.081, Florida Statutes). 

Compare the above cases with Kalb v. Sail Condominium Ass’n, Inc., 112 So. 3d 674 (Fla. 3d DCA 2013). In Kalb, the judgment against a corporation qualified to do business in Florida was valid. The plaintiff accomplished effective service on an employee of a condo association’s registered agent.

Boating ropes tied to fence. Personal Jurisdiction.

Is the Affidavit or Return of Service of Process on the Corporation or Trust Deficient?

The corporation or trust should inspect the process server’s affidavit or return of service. Does it specifically identify whom the process server served?

An affidavit of service merely alleging the plaintiff complied with the service of process statute may fail to meet the burden of establishing proper service.

Nonspecific Affidavits of Service Aren’t Enough

Multiple Florida cases illustrate this deficiency. For example, in Diaz v. Winn-Dixie Stores, Inc., Case No. 14-cv-21045 (S.D. Fla. January 9, 2015), a bare allegation of failing to keep a sign posted designating the name of the registered agent for process service couldn’t justify service on a corporation’s employee or an employee of its registered agent.

Likewise, in Johnston v. Halliday, 516 So. 2d 84 (Fla. 3d DCA 1987), a return of service merely stating that substituted service on the defendant’s son who was “of suitable age and discretion” was insufficient with no facts establishing the process server complied with the requirements for substituted service.

See also Mattress One, Inc. v. Sunshop Properties, LLC, 282 So. 3d 1024 (Fla. 3d DCA 2019) (quashing service on an unidentified, random  employee of corporation, where return of service did not show all officers of a superior class were absent before resorting to serving an officer or agent of an inferior class or the registered agent was absent).

In York Communications, Inc. v. Furst Group, Inc., 724 So. 2d 678 (Fla. 4th DCA 1999), a process server’s statement he served “John Doe corporate employee,” without a statement supporting the necessity for substituted service, was “patently tainted.” The process server alleged neither he first attempted to serve the registered agent nor the agent was absent.

The Corporation or Trust Must Be Specific When Challenging Service of Process

Just as a spouse who alleges valid service on a corporate entity or trust must specify whom the process server served and how, the entity or trust must specify defects in service. Generally denying service was valid won’t be enough.

To overcome the presumption that the service a facially sufficient affidavit describes was effective, the entity must specifically present clear and convincing facts, typically through sworn affidavits, that service was deficient.

Compare Panama City Gen. P’ship v. Godfrey Panama City Inv., LLC, 109 So. 3d 291 (Fla. 1st DCA 2013) (partnership’s mere denial of validity of service insufficient, but its later motion for reconsideration with attached affidavits from managing partner and son, plus a moving company’s receipt and letter from director of retirement community to which managing partner moved, established prima facie case to challenge service, entitling the partnership to an evidentiary hearing) with Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So. 3d 177 (Fla. 3d DCA 2011) (returns of service contained all information required to show plaintiff complied with the statute, plus corroborating testimony, entitled plaintiff to the presumption that valid service was effectuated, and affidavits defendants offered that failed to challenge the facial regularity of the return of service failed to overcome by clear and convincing evidence the presumption).

Seeking affirmative relief May Case Waiver of Challenges to Personal Jurisdiction

A nonresident who seeks affirmative relief may be subject to personal jurisdiction by consent or waived a challenge to personal jurisdiction. Sowden v. Brea, 47 So. 3d 341 (Fla. 5th DCA 2010)Ge v. Swearingen & Assocs., Inc., 328 So. 3d 58 (Fla. 5th DCA 2021)Babcock v. Whatmore, 707 So. 2d 702 (Fla. 1998)Empire Beauty Salon v. Com. Loan Sols. IV, LLC, 159 So. 3d 136 (Fla. 5th DCA 2014).

But, what is affirmative relief? Affirmative relief is relief a party seeks by raising a counterclaim or crossclaim the party could’ve maintained independently of the petitioner’s action. See also Inglis v. Casselberry, 137 So. 3d 389 Fla. 2d DCA 2013)Mason v. Hunton, 816 So. 2d 234 (Fla. 5th DCA 2002)

Seeking affirmative relief isn’t the same as merely asking the court to move along an in rem action, such as partition. See Fradera v. Fradera, Case No. 5D22-53 (Fla. 5th DCA Nov. 4, 2022) (asking for appointment of a special magistrate to conduct the sale of marital property at issue in a spouse’s partition action didn’t constitute a request for affirmative relief subjecting a nonresident husband to personal jurisdiction in Florida). In an in rem action, a party asks the court to act directly on property or the title to property rather than on a person or business entity.

Notebook with pencil. Challenges to Personal Jurisdiction. Service of Process.

Checklist for Corporate or Trust Challenges to Service of Process:

  • Was process (summons and the papers being served) properly issued and sufficient under Florida law?
  • Did the spouse validly accomplish service of process?
  • Was the hierarchy for service of process followed, if required?
    • Did the process server serve the registered agent?
    • Was service on the president, vice president, the cashier, treasurer, secretary, general manager, any director, any officer, or business agent residing in the state?
    • Can service be made at an address discoverable in the public records on an employee at the corporation’s principal place of business or employee of the registered agent, because the foreign corporation failed to comply with the requirements regarding a registered agent?
  • Was the proper party served? This can be tricky in corporate families.


If the entity seeks affirmative relief in the Florida family law action, it may waive otherwise valid challenges to the court’s exercise of jurisdiction, such to defective service of process.

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