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And You Thought It Was Good That Your Spouse Left The Country...




by:
Brad M. Micklin
Brad M. Micklin, Esq. Counsellor at Law, L.L.C. - Nutley Office

 
May 25, 2012

Previously published by www.njdivorceattorney.net

A client asked me to blog about serving divorce papers internationally for a divorce in the U.S.

The issue, in New Jersey, begins with Court Rule 4:4-4, which states that the primary method of obtaining jurisdiction (power to act) over person is to personally serve that person within the state. That means having the papers physically handed to the spouse by someone who is not connected to the litigation in any way.

This means it cannot be the spouse seeking divorce, that person's attorney or anybody who could be connected to the litigation such as children of the relationship or potential witnesses in a divorce action.

The court rule goes further to specify specific individuals who can accept service of  divorce papers for the other spouse.  This list is far too lengthy to set forth at length here.

The court rule further provides in subsection C that service may be made by registered, certified or ordinary mail. However, serving papers this way is only effective if the other person files papers in response.  But I would not rely upon this section especially in an international divorce issue.  However, you must remember that the rule against mail service is only effective if that person files a response. 

Normally, papers are served inside and outside of the state by a process server.  This is an individual or company that specializes in serving legal papers.  There are many companies who serve process both nationally and internationally.

It is important to choose a company with experience in serving papers because the person who serves the papers on the other spouse must provide you with a certification indicating that he/she served the other spouse and a description of the person he/she served.  If the person you hire serves the wrong person, serves a person not authorized by the Rules of Court and/or fails to file the appropriate certification of service, the court may not allow you to proceed on your divorce.

However, hiring a company to serve internationally can be very expensive.  A less expensive option, if you know someone in the country where the spouse is, is to have the person you know go and serve the other spouse with the papers.  You must be careful, however, that the person you choose is familiar with who can be served as well as the certification that he/she needs to complete.

Remember, without personal jurisdiction, courts are usually unable to act in any case, whether a divorce or any other matter.

Issue becomes more complicated depending on whether or not you know where the spouse is located. It is actually, probably, better if you do not know the specific location. Presumably, the other spouse would have been a resident of the United States at some time prior to the relocation internationally. For cases like this a person can obtain jurisdiction over person by what is called “substituted” or “constructive service.”  There are several ways to obtain jurisdiction by substitute or constructive servers.  First, you can obtain it by mail or personal service outside the state just as you would in New Jersey.  For this method, as well as all others, always remember that personal service is always the best option.

To obtain permission to serve by substituted service, you need to show the court that you attempted what is called “diligent effort and inquiry.” This means you must have searched to see whether or not the individual can be located in New Jersey.  The most common ways to show the court you made a diligent inquiry is to send letters requesting updated or current address of the individual spouse with the post office, Department of Motor Vehicles, Bureau of vital statistics and Board of Elections.

You start by sending letters to these individuals indicating you are seeking information concerning the address of the individual for service of process in a divorce. You should also indicate inside that letter the nature and type of litigation because you may not be otherwise able to obtain responses to these requests.

Once you receive the responses and the address is either unknown or outdated, you then file a motion asking for the court to approve service of process by an alternate method such as constructive or substitute service outside of the state.  You would attach the requests you made for information and the responses, presuming they do not offer anything more than the last known address in the US.

The motion would request permission to post notice of the divorce complaint in a local newspaper closest to the last known address of the missing spouse.

Once that is completed, you will receive a notice from the newspaper indicating that the notice was published.  You will have “constructively served” notice of the divorce complaint.  You should send a copy of the newspaper confirmation to the family court.  After 35 days pass, you can move forward if no answer is filed and request a default be entered against the other spouse.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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Brad M. Micklin, Esq. Counsellor at Law, L.L.C. Overview