The Importance of Service

There are many forms of service in the legal industry.  There is service to your clients, service to your community (legal, local, state, etc.) and many others, but today I want to focus on the two types of service that pertain to lawsuits.  Those would be service of process and military service as it relates to the servicemember's civil relief act affidavit.

Service of Process

Most people understand that any civil court matter (Superior, District, or Small Claims court), requires that the defendant to the action be properly served with a summons and complaint. This is governed by Rule 4 of the North Carolina Rules of Civil Procedure and pertains to Family Law matters as well.  There are multiple ways to perfect service on an opposing party, but for Family Law purposes, a filing party can obtain service by certified mail return receipt requested (make sure it's restricted to the party named in the lawsuit), and by sheriff's deputy or process server.  A party that obtains service by certified mail or process server must file an affidavit of service of process with the court and attach original proof of the service.  For the certified mailing, the filing party must attach the original green return receipt card with the defendant's signature on it.  If you serve a defendant by process server then you will need to attach the process server's proof of service.  If service is completed by a sheriff deputy, then he or she will send the proof of service back to the court for the filing party and it will go in the court file showing service was completed on the defendant.

Service of process is done so am I done?  Nope.  You are not done.  Keep reading.

Servicemember's Civil Relief Act Affidavit

What most people fail to realize is that there is also the requirement that each plaintiff must affirm to the court via a servicemember's civil relief act affidavit that the defendant to the pending civil action is not active duty military.  Yes, this pertains to family law matters as well and is required for all civil Superior, District, and Small Claims court actions.  The reason for this is to protect our men and women that are active duty military members from default judgments or commencement of court proceedings that they cannot attend due to their active duty status.  

The first thing a plaintiff will need in order to properly determine if someone is active duty military is the opposing party's date of birth and/or social security number.  Why?  Well, because the plaintiff will have to go here and print out a record (also called a certificate) of the opposing party's military status.  The print out from the Department of Defense's website is proof as to whether or not an opposing party is active duty military.  That certificate/record will need to be attached to the SCRA affidavit and the original filed with the court.

What if the opposing party is not active duty military?

Then as long as the filing party properly files the affidavit with the certificate the filing party will have complied with the SCRA requirement.

What if the opposing party IS active duty military?

If the opposing party is active duty military and a court date is set that he or she will be prevented from making an appearance at, then there will be a stay of the proceedings and the court date will be continued to a time that will allow the servicemember to appear in court.  

If the filing requires a written response (answer or other responsive pleading) and the servicemember's active duty status prevents him/her from filing said response, then the court will be barred from entering a default judgment against the servicemember.

In my opinion, protecting active duty military from not having a voice in the courtroom is one of the few things that our government has gotten right.  I want to give a huge thank you to all our servicewomen and servicemen, active duty or not.