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Virginia Service of Process for Divorce
According to Virginia law, anyone over the age of 18 who is not involved in the case in question can legally serve case papers, but some local laws further restrict who can be a process server. Personal service of process may be effected by any private person who swears out an affidavit testifying to the time and manner of service. Often, process is served by the sheriff, who serves anyone in his own jurisdiction or in adjacent cities or counties.
Serving the Papers
Personal service is the first form of service that must be attempted because in divorce the defendant is an individual, so an effort must be made to serve the party in person. After receiving process, the defendant has 30 days to respond, which is done by filing an acceptance of service of process and an answer to the complaint.
When he or she cannot, or will not, be found, substituted service becomes available. Substituted process service may be delivered to the usual place of residence of the party, so long as the person accepting it is a family member of the party, at least 16 years old, not a "guest or temporary sojourner" at that location, and is told what is being delivered.
Virginia permits service other than personal, and each substitute is placed in order by preference, meaning that service by one method must be attempted and shown to be unavailable before the next method is attempted.
Posting of process is an option when no person is available to accept service. In this routine, process is simply being posted on the party's front door (or whichever door appears to be the main entrance). Where service is effected by posting, the plaintiff must then also mail a copy of the process to the defendant and certify the mailing to the clerk of the court at least ten days in advance of a default judgment. The court accepts a party's last known address as the "usual place of abode,” so in an instance where the party has left, the court considers them served even when the posting may be at an abandoned apartment.
After the process server completes service, he or she completes an affidavit of service, which describes the date, place, time and method used to effect service. When substituted service was used - for example, delivery to a person at the recipient’s residence - the server must indicate the individual’s name, or a detailed physical description of the individual accepting service on behalf of the defendant. The affidavit of service is filed with the court prior to the plaintiff’s appearance and provides evidence that the defendant has knowledge of the lawsuit.
A petitioner may effect service under the Virginia Long Arm Statute when a defendant can be served no other way. For this method, the plaintiff states in an affidavit that the defendant is not a resident of Virginia, or can not be found in Virginia with due diligence, and recites the defendant's last known address. He or she then sends this, along with the process itself, to the Secretary of the Commonwealth of Virginia, who then mails the divorce papers by registered or certified mail to the defendant's last known address, and files a certificate with the court stating this. At that point, service is deemed to be complete.
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