As part of any lawsuit or civil action, service of process must be completed. Service of process is the official, legally recognized act of giving formal notice to the parties that are involved in a legal action of their need to come to court or have some other participation in a legal matter.
Family law is a civil action, and much like many other civil actions, it has the same requirement for service of process (service). In this blog, we will talk about service with regard to how it is related to family law matters. Like all of our blogs, this is intended for informational purposes only, and is not intended as a substitute for the advice and counsel of a family law attorney.
When is service necessary?
Typically, service is part of the first step in starting a family law action. Meaning, the complaint that is filed must be properly served on the defendant in the action. Failure to properly serve the defendant can lead to the case being dismissed or otherwise not moving forward. Within an ongoing case, it is also necessary to show that both parties have been given notice of any hearings or trials that are scheduled.
What is considered proper service?
The rules regarding proper service are set forth in the North Carolina rules Civil Procedures under rule 4 and rule 5. Some of the general rules, provisions, and concerns regarding service are as follows:
- Service may be made in person by any proper person who is not a party to the action
- Service may be made by mail to a last known address of the party involved if the person is not represented by a lawyer
- If someone is represented by an attorney, service should be made to that attorney
- Proper service is not enough. Proof of service is almost always necessary in any family law case, especially when that becomes a point of contention.
What if I can’t get a party served?
You pretty much have to. Without service, a judge will not usually hear a court case, and they are reluctant to issue orders without proper proof of service. If you don’t know the residential address or workplace of a party in order to serve them in person or by mail, courts may recognize generally service by publication.
Service by publication can be a complicated matter that you want to hire an attorney for, and it is only available when a party cannot otherwise be served. You must first exhaust other options such as sheriff’s service, service by process server, and service by mail. There typically must be some showing that several alternative methods of service have been attempted.
Other issues with regard to service
In most family law cases, especially uncontested divorce case, North Carolina may require an affidavit of military service to show that the defendant was not on active military duty when he was served, if he or she didn’t file an answer. This is to prevent default judgments from people that could not be served because they were in active military service.
If are involved in a family law matter and are in need of legal assistance, contact us. We handle family law matters in Charlotte, NC and the surrounding areas.