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To Serve or Not To Serve (A Divorce Complaint)

Prolific jurist, Honorable Lawrence R. Jones, J.S.C. in the family part in Ocean County, New Jersey, issued another published decision in the matter of J.C. v. M.C., decided on November 6, 2014.  This time, Judge Jones addressed the obligation of a plaintiff seeking a divorce to make a “diligent inquiry” as to the defendant’s whereabouts in order to serve a complaint for divorce when there is an active domestic violence restraining order against the plaintiff. Judge Jones’ decision gave priority to the right of a domestic violence victim to confidentiality of his or her location.

In J.C. v. M.C., the parties were married in 2006. The wife obtained a final domestic violence restraining order against the husband in 2012. The final restraining order prohibited the husband from contacting the wife. Thereafter, the parties lived separate and apart, but remained married. In 2013 the husband filed a complaint for divorce against the wife. On June 13, 2013, the plaintiff/husband filed a motion for an order permitting substituted of  the divorce complaint upon the defendant/wife based on his inability to contact the defendant due to the active final restraining order entered against him.

Pursuant to the New Jersey Rules of Court, an individual seeking a divorce must effectuate service of process of a divorce complaint upon their spouse. Rule 4:4-3 provides that “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.” Rule 4:4-7 provides that if service is made by a person other than a sheriff or a court appointee, proof of service shall be by “… affidavit which shall include the facts of the affiant’s diligent inquiry regarding defendant’s place of abode, business or employment. If service is made by mail, the party making service shall make proof thereof by affidavit which shall also include the facts of the failure to effect personal service and the facts of the affiant’s diligent inquiry to determine defendant’s place of abode, business or employment.”  In order to demonstrate “diligent inquiry”, Rule 4:4-5(b) requires a plaintiff to inquire “of any person who the inquirer has reason to believe possesses knowledge or information as to the defendant’s residence or address or the matter inquired of; the inquiry shall be undertaken in person or by letter enclosing sufficient postage for the return of an answer; and the inquirer shall state that an action has been or is about to be commenced against the person inquired for; and that the object of the inquiry is to give notice of the action in order that the person may appear and defend it.”  The function of the prerequisite of diligent inquiry is to give the defendant notice of the divorce proceedings, and an opportunity to be heard.

In the event that a plaintiff cannot serve the divorce complaint on a defendant after “diligent inquiry”, Rule 4:4-5 provides the following methods of alternate service: (1) personal service outside the state; (2) service by mail; (3) publication of a to defendant in a newspaper of general circulation in the county in which venue is laid; or (4) as may be otherwise provided by court order. Most jurisdictions require a “diligent inquiry” as to the whereabouts of the defendant before allowing service of process by publication.

The “diligent inquiry” requirement of service of process upon a defendant conflicts with the New Jersey Prevention of Domestic Violence Act (“Act”).  Under N.J.S.A. 2C:25-17, the address and location of victims of domestic violence are to be kept confidential and not provided to the offending party.  Additionally, N.J.S.A. 2C:25-33 provides that domestic violence records maintained pursuant to the Act shall be confidential and not made available to any individual or institution except as otherwise provided by law.  The objective of the Act is to afford victims of domestic violence protection from their abusers.  When an individual is prohibited by a restraining order from contacting the victim he or she cannot personally serve the victim with a divorce complaint.  An individual prohibited under a restraining from contacting another party also cannot conduct a “diligent inquiry” as to that party’s whereabouts when the Act provides confidentiality of the victim’s location.

Given the competing interests of service of process and the Act, Judges Jones stated that an alternative procedure must be provided which respects the goals a “diligent inquiry” and the domestic violence victim’s right to maintain confidentiality of their location. Judge Jones rejected service of the complaint by publication as alternate means of service in this case because it is the least likely method of successfully serving a defendant in the electronic age. Most people now get their news in electronic form via the Internet.

An alternate means for serving a divorce complaint against on a victim of domestic violence when there is a restraining order in place is for the Court to enter an order directing the Court’s Domestic Violence Unit to forward the summons and complaint to the defendant via certified mail to the victim’s last known address.  Judge Jones also stated that in the event the last known address is no longer valid, the Domestic Violence Unit may call the victim as the telephone number is usually on file and may not have changed. In addition, the Summons and Complaint could be served via email as an attachment to the victim by the Domestic Violence Unit.  Lastly, Judge Jones stated that under the Address Confidentiality Program Act, N.J.S.A. 47:4-1, a victim of domestic violence may be served with the Summons and Complaint via substituted service upon the Office of Secretary of State.

While the facts of J.C. v. M.C. may make the defendant amenable to service of process via the aforementioned ways, this is not a one size fits all ruling. Each cases presents different fact to consider in order to effectuate service of process. When dealing with these issues the Law Office of James P. Yudes, P.C. has the knowledge and expertise to assist you.