Everyone has seen a hearing on TV, but very few people know the process that leads up to that hearing. 95% of family law cases get settled before they even go to trial. Family law cases can be very stressful, but knowing what’s coming next can help lessen that stress. For a few weeks, we will look at the steps of a family law case prior to a hearing.
Part 3: Service (Rule 4)
Once a complaint has been prepared and filed, it must be served on the other party according to NC Rules of Civil Procedure Rule 4. In a lawsuit, Rule 4 Service is a special process required to notify the other party about a new lawsuit. Service can happen in different ways depending on where the other party is and whether they try to avoid being served.
In order to serve a party, you need a cover page called a summons. Your attorney will have included a prepared summons when they filed your complaint and the clerk will stamp, sign, and officially issue that summons. The summons is good for 60 days unless you ask the court for an extension, so it has to be served within that time. The complaint is attached to the summons to tell the other party what claims you have made against them.
Once the summons is issued, your attorney will choose a method of service based on the circumstances of your case. If the other party has engaged an attorney, your attorney will probably reach out and ask if the other party will come into their office and sign an acceptance of service. If that doesn’t work or the other party doesn’t have an attorney yet, then you must first attempt personal service. If the person is in North Carolina, then the summons and complaint are sent to the sheriff’s office of the county they live in, and a sheriff’s deputy will attempt to give the summons to the other party or an adult who lives in the party’s home. If they aren’t able to serve the party that way or it the other party lives in a different state, you are free to use other methods of service. A private investigator or other person who is over 21 and is not a party to the lawsuit can give the summons to the party or an adult living with them. If that doesn’t work, the party can be served by certified mail with a return receipt requiring someone to sign for the summons.
But what if you can’t find the other party or their address, no matter how hard you try, or the party has managed to avoid personal service and won’t sign for mail? Then you can serve by publication. Every county has a particular newspaper where legal notices are published. Your attorney will send a notice to that newspaper in the county where the person is believed to live or, if you don’t know where that is, where the complaint was filed. The newspaper will print the notice for three weeks. If you know an address, a notice of publication must also be sent there by mail at or before the publication.
Once service is done, proof of service has to be filed with the clerk of court. If a sheriff serves the summons, they will send a proof of service form directly to the clerk. If someone else serves the other party personally, your attorney will receive and file the proof of service form. If service is done by mail, the signed return receipt is filed. If you have had to serve by publication, your attorney will get a publisher’s affidavit from the newspaper and file that.
Service can be the easiest or the hardest part of a lawsuit, depending on how cooperative the other party is and whether you know where they are. Unfortunately, nothing else can happen in your lawsuit until service is completed. Luckily, though, you only need to go through this process once during your lawsuit. Any other motions and filings can be served through a much simpler process.