Legal Question in Family Law in New Mexico
In New Mexico, if personal service by a deputy sheriff of a Petition For Divorce fails to include a copy of the Summons and only consists of the Petition For Divorce, is the service process defective? Can a motion to dismiss the petition be filed with the court and force the Petitioner to file a new Petition and Summons and have the complete package of the summons and the petition personally served again?
1 Answer from Attorneys
A strict interpretation of the Rules of Civil Procedure makes the service you describe defective. A summons must be served with a copy of the petition to comply with the rules. Whether or not a judge would strictly enforce the rule is up in the air. Also, there is a problem of proof. If the process server says the summons was attached, and you say it was not, you have a draw. You will be better served by dealing straight-up with the divorce, and proceed to respond to the petition and get on with it. There is no profit in dragging it out, including doing so just to aggravate the opposing party.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
