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J.C. v. M.C.

Superior Court of New Jersey, Chancery Division, Ocean County, Family Part

September 13, 2013

J.C., Plaintiff,
v.
M.C., Defendant

Approved for Publication November 6, 2014.

Plaintiff, pro se.

No appearance by defendant.

OPINION

Page 319

[438 N.J.Super. 327] CIVIL ACTION

L. R. JONES, J.S.C.

This case involves a circumstance where a husband files a divorce complaint, but cannot verify his wife's address for service of process due to an active domestic violence restraining order.[1] Accordingly, the legal issue at hand involves a clash of two distinct rules and policies in New Jersey: (1) the obligation of a plaintiff seeking to serve a divorce complaint upon a defendant to make " diligent inquiry" of the defendant's whereabouts to effectuate service of process, and (2) the right of a domestic violence victim to confidentiality of his or her location. The New Jersey Court Rules do not directly address this issue or its resolution.

For the reasons set forth in this opinion, since the second policy involves issues of physical safety while the first policy does not, the second policy must be given legal priority over the first. The [438 N.J.Super. 328] court orders that husband shall not be required to demonstrate traditional " diligent inquiry" to locate wife, and in fact is prohibited fro personally making any such hands-on investigation into wife's whereabouts. Instead, the domestic violence unit of the family court will attempt substitute service by forwarding a copy of the summons and complaint to wife at her last known address in the unit's records, via certified and regular mail.

FACTUAL BACKGROUND

Husband and wife married in 2006. In 2012, wife filed a domestic violence complaint against husband. Following a hearing before another judge, the court found that husband committed an act of domestic violence against wife, and granted wife's request for a final restraining order (FRO). This order, which prohibited husband from contacting wife, still remains in full force and effect, and the parties have lived separate and apart ever since.

Notwithstanding the restraining order, wife has never filed for divorce, and the parties remain married. Husband, however, has now filed a pro se divorce complaint under N.J.S.A. 2A:34-2(i), seeking to terminate the marriage on the ground of irreconcilable differences. He has been unable to effectuate service of the filed complaint, through the sheriff's department

Page 320

or otherwise, as due to the no-contact order, he is unable to verify wife's present address or otherwise confirm her location.

On June 13, 2013, husband filed a motion for an order permitting substitute service, so that the divorce proceedings can ...


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