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One of the most crucial steps in the divorce process is a proper service of the divorce papers. If you are thinking about or are ready to get a divorce, it is important to understand the divorce process and the proper procedures, including how to serve the divorce papers on your spouse. The experienced divorce attorneys at Rosenblum Law will guide you through your divorce, from the initial filing to when everything is finalized.
In the meantime, read this article to learn about the divorce process in New Jersey, and specifically to learn how to serve divorce papers on your spouse.
Overview of the Divorce Process
In general, the divorce process is as follows:
- The spouse filing for the divorce, also known as the plaintiff, must file a divorce complaint with the court, and complete the summons, and other documentation.The complaint is the document that begins the divorce and establishes grounds, and the summons informs the defendant that they have 35 days to respond to the complaint.
- Once the complaint is filed, the plaintiff will have 30 days to properly serve the complaint,summons, and other documentation on the other spouse, otherwise known as the defendant.
- The parties can request mediation at any time during the divorce, but mediation can be particularly useful to negotiate a divorce settlement agreement to avoid litigation.
- The divorce will enter the discovery phase, in which both sides submit various relevant financial and legal documents and evidence to the court, and to each other.
- If both parties cannot agree on a divorce settlement agreement, they will go to court and present their arguments in the trial. The judge will then decide the various divorce issues, such as the division of assets, alimony, and child custody or support
Understanding the Service of Divorce Papers
Before serving one’s spouse divorce papers, it is important to understand why a proper service is so important, as well as the procedure for properly serving and documenting the divorce papers.
The Importance of a Proper Service of Divorce Papers
It is important to properly serve the divorce papers, i.e. the complaint, summons, and related documents, on the other spouse (the defendant). This is true for several reasons:
- It provides each party due process, meaning both parties are given notice that the divorce proceedings have begun, and the defendant has adequate time to respond.
- It establishes jurisdiction over the divorce proceeding, meaning the court has the power to make decisions regarding the divorce.
- The divorce decree, or the court’s judgment to dissolve the marriage, will only be valid if there was a proper service of the divorce papers. If it can be proven that there was not a proper service of the divorce papers, this could invalidate the divorce decree.
Failure to properly serve the divorce documents will mean that the entire process has to be started again. This will result in a more time-consuming case, leading to higher legal bills and court fees.
How to Properly Serve the Divorce Papers on Your Spouse
There is a specific process that must be followed in order for the service of the divorce documents to be considered legally valid, and to prove that the other spouse received the papers. To serve the divorce papers, the plaintiff must:
- Gather the necessary documents that are required to be served, including a copy of the divorce complaint, which should have already been filed with the court, and the court summons. The plaintiff must serve their spouse the divorce papers no more than 30 days from the date they filed the divorce complaint. If the plaintiff has received legal representation, they will also need to include a listing of attorney referral and the legal services offices.
- Choose the appropriate method of service based on the circumstances of the case. A proper service of court documents must be performed by a third party that does not have an interest in the case. This individual must sign an affidavit attesting to actually completing the service of the documents on the defendant.
- Serve the defendant via the chosen method of service. If the defendant cannot be located for personal service, substituted service, or mail service, the serving spouse might have to ask the court for an order to allow for service by publication.
- Once the defendant has been served, file the proof of service document with the court. The defendant must respond within 35 days of receiving the divorce papers.
Methods of Serving Divorce Papers in New Jersey
There are several ways that divorce papers can be properly served in New Jersey.
Personal Service
The primary method of service is personal service. This means that the documents are served on the defendant in person or dropped off with another competent member of the defendant’s household who is at least 14 years of age. Personal service is the preferred method and is the most likely to be considered valid by the court.
This method of service can be performed by either the local sheriff or a professional process server. If a process server is used, the plaintiff will need to complete an Acknowledgement of Service form to submit to the court. The receipt for the process service must be included as well.
If the plaintiff uses the sheriff’s office to serve the documents, there will be a fee charged. Once the sheriff’s office has served the defendant, it will send proof of service to the court. The plaintiff will be provided a copy of the proof of service.
Substituted Service
Another possible method for serving the defendant is substituted service, which should only be used if personal service is not possible after diligent effort. If the defendant is not located in New Jersey, the plaintiff can use substituted service by serving the defendant in another jurisdiction in the same manner as they would in New Jersey.
Substituted service can also be accomplished if the defendant is located outside of the U.S. by following the guidelines for personal service in accordance with any international treaties addressing this issue.
Finally, substituted service can be accomplished by mailing the documents via registered or certified mail, with a return receipt requested, while simultaneously sending by ordinary mail. The documents should be addressed to any competent individual at least 14 years of age who is a part of the defendant’s household.
Service by Mail
The plaintiff may also send the summons and complaint via registered, certified, or ordinary mail addressed to the defendant. Note that service by mail is not considered valid until the defendant answers the complaint. In addition, the court may not enter a default judgment if this service method is used.
If the defendant fails to respond after 60 days of attempting service by mail, the plaintiff will again have another 30 days to attempt to serve the defendant with the complaint and summons.
Service by Publication
This method of service entails publishing an official notice through a local newspaper in the county where the divorce complaint has been filed. The service by publication method can only be utilized upon a court order. The judge will only sign this order after it has become clear that the defendant cannot be located or that the defendant is purposely being evasive.
The Role of a Lawyer in Serving Divorce Papers
Properly serving divorce papers can be challenging and frustrating without legal guidance. This is why hiring an experienced divorce lawyer is highly advised.
Hiring an attorney can prevent costly and time-consuming mistakes. An attorney can assist with preparing the complaint, summons, and proof of service documents before filing them with the court within the required timelines. An attorney can also help select the best method of service, and coordinate with process servers and other professionals to ensure everything goes smoothly when serving the defendant.
If there are any unexpected complications in attempting to serve the defendant, an experienced attorney will be able to troubleshoot the situation and help determine the best way to remedy the situation.
Dealing with Complications in Serving Divorce Papers
Serving divorce papers while adhering to court rules can be even more challenging if the defendant is deliberately evading service. If initial service attempts via personal service, substituted service, or mail service fail, more drastic legal action will have to be taken with the help of an attorney. The final option in this case would be to request the judge order service by publication. If the defendant still doesn’t answer, a default judgment in favor of the plaintiff may be entered.
If the defendant spouse lives out of state, this can also make serving divorce papers difficult. However, they can still be served through a substituted service method as if they were living in New Jersey.
If the defendant is living in another country, the plaintiff can serve court papers by following regulations laid out in applicable international treaties.
FAQs
Failure to properly serve divorce papers can result in having to start the divorce process over again. This will mean refiling the complaint and attempting again to serve the complaint and summons which can waste time and money on legal charges and court fees.
Any individual who does not have an interest in the case and is at least 18 years of age can serve divorce papers in New Jersey.
There are several options available if you cannot find your spouse for personal service. One option is substituted service. If this does not work then you can try utilizing mail service. Lastly, if none of the other methods have been successful you can ask the court to order service by publication.
No. An individual who does not have an interest in the case must serve divorce papers.
After being served, your spouse has 35 days to respond to the complaint.
If your spouse was served properly through personal service or substituted service but refused to accept them, it is still considered legitimate service. In this case, if your spouse decides to not respond to the complaint, the court will enter a default judgment in your favor. If your spouse cannot be located, making personal service and substituted service unattainable, then you can try a mail service method. If that fails after diligent efforts, you can ask the court to order service by publication.
Proof of service is a legal document from a process server attesting to completing service of court documents on the intended recipient who is a party to the case. It is important because the divorce process cannot continue if there is no legally valid proof of service.
No. Serving divorce papers via email or social media is not allowed.
Some costs of serving divorce papers include hiring of a process server as well as attorney fees if you have obtained legal representation. There may be postage costs associated with service methods that involve sending mail.
Improperly serving divorce papers can increase costs because you might have to pay again for a process server. Moreover, if the deadline to serve the complaint and summons ends up lapsing due to improper service, then you will have to restart the divorce process. This means refiling the complaint and all of the costs associated with it. Therefore, improper service can increase the costs of the divorce as well as delay the completion of the divorce.
Contact Rosenblum Law Today
Proper service of court documents during the divorce process is an important detail that you need to be aware of when attempting to navigate the divorce process in court. Failure to properly serve divorce papers on your spouse can cost you additional legal and court fees, and it can slow down the progress of finalizing the divorce.
This is why hiring a competent attorney is important. Our family law attorneys at Rosenblum Law have extensive experience with serving court documents while adhering to necessary court rules. If you want to avoid the negative effects on your divorce due to improper service, contact us now for your free consultation with one of our attorneys.
Last updated: Jun 17, 2024
