What is Valid Service and Why Is It Important?
At the beginning of any law suit, including those for divorce or child custody, the plaintiff files a petition with the proper court. The next step is that the defendant must be properly served with a copy of all the necessary paperwork. Service is an essential step of any family law case, and it is important that both plaintiffs and defendants understand at least the basics of the process and why proper service is so crucial.
New Jersey divorce plaintiffs are required to properly serve the defendant with a copy of the divorce complaint. New Jersey Rule 4:4-3 provides "Summonses and writs shall be served, together with a copy of the complaint, by the sheriff or other officer authorized by law or by a person specially appointed by the court for that purpose, or by plaintiff’s attorney or the attorney’s agent, or by any other competent adult not having a direct interest in the litigation." This means that usually a sheriff is the one handing the divorce papers to the defendant spouse or parent. In some cases, though, it is possible for a plaintiff to hire his or her own private process server. This can be helpful if the plaintiff is in a particular hurry, or the defendant will potentially be trying to evade any person he or she believes is trying to serve divorce papers. Moreover, in some limited circumstances, if service is not possible to complete personally, it could be possible to serve the defendant by publishing an ad in the local paper or even by certified mail.
Whatever way it is accomplished, service is an absolutely crucial step that can never be skipped or done half-way. If a plaintiff fails to serve a defendant, he or she cannot get the divorce or proceed to final hearing. If the plaintiff gets a final order without serving the defendant, the defendant can file a motion later to undo the final order and start the case all over again. The defendant has a right to go to court and challenge the allegations in the plaintiff’s paperwork. If the defendant was not properly served, the court will start the case over and provide the defendant with that opportunity.
In the case of restraining orders or emergency custody orders, the order is sometimes only binding upon the defendant once the order has been properly served. For example, if a domestic violence victim obtains a restraining order against his or her spouse, the spouse will not be subject to the potential punishment of violating that order until he or she has been properly served with a copy.
Service is a very important first step in your case, and in helping our clients get it done properly, even when the defendant is trying to dodge service. Contact us today at (732) 529-6937 to talk about the options for moving your case forward.