In a movie that I adore and one that should be required viewing for anyone contemplating marriage, Dean reluctantly says to Cindy, “You said for better or for worse. You said that. You said it. It was a promise. Now, this is my worst, okay? This is my worst. But I’m gonna get better.” Blue Valentine concludes with the heightened events that normally precede a client contacting a family law attorney for the first time. This climactic scene also represents the unspoken backstory that normally informs the still amorphous shape of the forthcoming storm known as a divorce proceeding.
Fittingly enough, one of the most scrutinized steps in the divorce process is its origin: the form and fashion of the service of the complaint. I have always been confounded by the level of anxiety associated with this step, as I imagine that anyone despondent enough to file for divorce must have previously manifested such animosity in some other form to their spouse. However, I have learned that many defendants are often too narcissistic, heedless or detached to believe that their spouse possesses the fortitude to follow through with what they previously dismissed as mere idle threats. As a result, receipt of the complaint can illicit reactions that run the gamut from incomprehension to indignation. This spectrum is akin to the bewilderment and disconnect you experience upon seeing your souvenir photo taken midflight during a rollercoaster ride, such that we each deal with stress in unique and unforeseen ways.
It is suffice to say that service of the complaint is a deeply trepidatious occasion to many would be plaintiffs. Perhaps because service can signify a tacit admission that their relationship was a failure or because it is actualization that the mental choreography of that last look may not be entirely on their terms. Either way, putting the defendant on notice of that their spouse believes their marriage is irretrievably broken can become a very involved process. Although New Jersey is a no-fault state, the complaint itself, through counts of adultery and extreme cruelty, can become a vital memoir to your client of their marriage.
Far too often, a divorce serves as the backdrop for the plaintiff’s one chance for their fifteen minutes of fame. Our clients relish the opportunity for an omniscient authority to judge their unfulfilled and inflated sense of needs and wants, that which is normally reserved for tabloid fodder. It is likely their only opportunity to publically document their jejune and malcontented musings, which can ostensibly exonerate them from all responsibility for their own life. These concerns are embodied and heightened by the manner in which our client place the defendant on notice of their intention to separate.
On the occasions when the defendant already has an attorney, service of the complaint is effectuated by a simple correspondence between counsel and the drama is entirely removed from the process. However, when the defendant does not have counsel, there are two primary questions that become agonized over by the plaintiff. Where should the defendant be served and by whom.
The first question is normally a choice between service at work or at home. The former option involves the potential for co-workers to bear witness to the aforementioned souvenir photo. However, plaintiffs often avoid this option because they want to ensure that their spouse’s reaction does not impact their continued employment. The latter involves the parties’ children becoming the first set of bystanders to the defendant’s retaliatory smear campaign to plaintiff’s decision. No matter the number of telltale signs that have existed in perpetuity, receipt of a complaint can be a humiliating moment for a defendant because it is the realization that their relationship is not ending on their own terms.
The second question relates to whether our client should deliver the Complaint directly or through a process server. The divorce process does not formally begin in New Jersey until service is effectuated. Once this is completed, the defendant has thirty-five days to respond or default may enter against them. If the complaint is served directly, there is concern that the defendant will not acknowledge service and be able to delay the initiation of the process. As a result, plaintiffs often enlist a process server such that the defendant merely needs to receive a copy of the complaint rather execute an acknowledgement of service to be formally served. However, this leads to the inevitable question of when to serve the defendant.
Plaintiffs have the option of directing the process server to arrive during a prescribed time based upon a belief that only the defendant will be present during that time. Inevitably, the process server can not locate the defendant as they suddenly go underground during that brief window. In turn, they then are forced to re-serve them, only to ring the doorbell while the entire family is sitting down for dinner. Despite the best laid plans, this leads to service occurring during the most inopportune time and the perfect storm of family crises arises as a result.
The reality is that there is no good time to deliver such bad news. In most instances, if the defendant is remotely perceptive they are already cognizant of the lack of physical intimacy, truncated communication, separate vacations, and discarded wedding bands. As a result, the anticipated belligerent histrionics that plaintiffs imagine defendants will respond with are normally displaced with a reaction of passivity and dejection. It is impossible to control the manner of service or how the defendant will react to receiving the complaint. Moreover, whether your spouse is served in the presence of the children or not, they going to regrettably communicate to the children that you want the marriage to be over. In most cases the children are far more in tune with this reality than the parties’ themselves.
Service of the Complaint and a Judgment of Divorce are worlds apart. In many cases they are far more than 26.2 miles apart. If you know your marriage is over, consternations about the manner of service are merely window dressing used to delay the inevitable. They say that the devil is in the details. However, in the end, concerns about the manner of service will be as relevant to you as the colour and theme of your wedding invitation.
Seth Parker is an associate in Fox Rothschild LLP’s Family Law Practice Group. Seth practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7538, or firstname.lastname@example.org.