Legal Question in Family Law in California
My ex has not filed personal service with the court to set aside judgment of nullity. Only attoreny to attorney. What is the family code to show that they must file the personal service? Also, if they don't file it, does the court have jurisdiction to move forward? Thanks!
2 Answers from Attorneys
Only the petition and original summons get served by personal service. Once the parties have attorneys, the attorneys serve each other by mail. Personal service on the parties of a motion to set aside a judgment of nullity is not required.
Mr. Roach is basically right, but for others who read this answer I want to clarify a technical error. The petitioner (or the plaintiff in a regular civil case) submits to the jurisdiction of the court by filing the petition (or complaint or other original pleading in a case). Until the respondent (or defendant) makes a "general appearance," personal service of all documents is required. Filing pretty much anything other than an objection to jurisdiction or venue, or appearing in person at any court proceeding except to object to jurisdiction or venue, is a general appearance. Once the respondent has made a general appearance in the case, they have submitted to the jurisdiction of the court. At that point, both sides may serve each other by mail at the address provided in the papers filed with the court - if that address is an attorney's office, then that is the person who is authorized to receive service for the rest of the case unless they file and serve a withdrawal from representation. Personal service is only required any time after that if the party serving is up against a deadline and does not have the five extra days you have to give when serving by mail instead of in person.
Therefore, it is not technically correct that once the parties have attorneys they serve each other by mail. Only once an attorney has made a general appearance is mail service allowed. Since the petitioner's attorney must have made a general appearance in order to obtain a judgment, however, Mr. Roach is correct that service by mail is all that is required for a motion to set aside the judgment.