A new client once hired me and asked if I could serve divorce papers on his wife that same day. I explained that it probably wasn't going to happen.
His question made me realize that there's a lot of confusion about what it actually means to "serve" someone with divorce papers in New Jersey. Filing for divorce and serving divorce papers are two different steps, and one generally has to happen before the other.
So let me explain how it works.
Before divorce papers can be served, the divorce case has to be started.
That begins with preparing and filing a Complaint for Divorce with the New Jersey Superior Court, Family Division. The complaint identifies the parties, states the legal grounds for the divorce, and tells the court what relief the person filing the divorce is requesting.
Once the complaint has been properly filed, the case receives a docket number. If you're the person who filed the divorce, you're known as the plaintiff. Your spouse is the defendant.
Now the defendant has to be formally notified that the divorce case exists. That's where service comes in.
Service means formally providing your spouse with the filed divorce papers in a manner recognized by the court.
This isn't just a technicality. Your spouse has a legal right to know that a divorce action has been filed and to have an opportunity to respond. The court therefore needs proof that the appropriate papers were actually delivered.
In a New Jersey divorce, the papers being served include the Summons and filed Complaint for Divorce, along with other required documents.
Once service has been completed, proof of that service is provided to the court.
One common method is personal service. New Jersey Courts identifies both a county sheriff's officer and a private process server as options for serving divorce papers.
A process server's job isn't to argue with your spouse or embarrass them. The purpose is simply to properly deliver the required documents and establish that service occurred.
There can also be situations where your spouse cooperates with the process and formally acknowledges or accepts service rather than requiring someone to personally deliver the papers. New Jersey's court rules recognize an acknowledgment or acceptance of service under appropriate circumstances.
If your spouse has an attorney, your lawyer can also determine whether that attorney is authorized and willing to accept service on the spouse's behalf.
The important point is that you don't want to improvise. Service has legal consequences, so it needs to be completed in a way that satisfies New Jersey's court rules.
Generally, you should not personally serve your own divorce complaint. New Jersey's rules permit service by certain people, including a sheriff, an attorney or attorney's agent, or another competent adult who does not have a direct interest in the litigation.
If you're represented by a divorce lawyer, your attorney can determine the appropriate method and arrange for service. This is usually much better than turning the beginning of your divorce into a confrontation between you and your spouse.
Under current New Jersey Courts guidance, the other party should be served with the divorce papers within 60 days after the papers are filed. Once the court confirms that the documents were properly filed and you have the filed complaint with its docket number, the service process can begin.
That doesn't mean every spouse will be served immediately. How long it takes can depend upon the method of service, whether the spouse cooperates, whether their location is known, and other circumstances. That's why my client's request to file a divorce and have his wife served that same day wasn't as simple as it sounded.
Service starts an important clock.
In a typical New Jersey divorce action, the defendant generally has 35 days after being served with the Summons and Complaint to respond.
The response may take different forms depending upon the circumstances. Your spouse might file an Answer, an Answer and Counterclaim, or another appropriate response.
If your spouse doesn't respond within the required time, that doesn't mean you automatically get everything you asked for in the divorce. However, you may be able to ask the court to enter default and proceed through the applicable default-divorce process.
Proper service becomes especially important at that point because the court needs to know that your spouse was actually given notice of the case and an opportunity to participate.
Trying to avoid the process server doesn't make the divorce disappear.
If ordinary personal service can't be completed, New Jersey's court rules provide other procedures that may become available depending upon the circumstances. The appropriate next step depends on what efforts have already been made and what information is available about the spouse's location.
This is another reason it's important to handle service correctly from the beginning rather than simply assuming that handing your spouse a copy of the complaint is enough.
Being served with divorce papers doesn't mean you're divorced. It means a divorce action has been filed and your spouse has been formally notified of it.
From there, your spouse has an opportunity to respond, and the case begins moving through the New Jersey divorce process.
If you're considering filing for divorce and want to understand what happens before and after the complaint is filed, my free Divorce Smarter Course walks you through the New Jersey divorce process and the decisions you may face along the way.
Until next time,
Steve