CASES OF INTEREST
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CASES OF INTEREST: PROCESS ISSUES
 
Issue: Service on Absent Defendants/Due diligence requirements of Affidavit of Diligent Inquiry under New Jersey
 
 
 
Issue: Service on Absent Defendants/Due diligence requirements of Affidavit of Diligent Inquiry under New Jersey Court Rule 4:4-5(c)(2)
Sajid Rasul Modan, Plaintiff-Respondent/Cross-Appellant, v. Afefeen Baig Modan, Defendant-Appellant/ Cross-Respondent. (327 N.J. Super. 44, N.J.Appellate Division, 2000).
Q. Can a default judgment for divorce be vacated if the petitioner did not comply with the requirements of the Affidavit of Diligent Inquiry required when seeking an Order for Publication of the Complaint from the court?  

Yes. The affidavit of diligent inquiry requires disclosure of all efforts made to ascertain the defendant's whereabouts, before seeking an order for publication. The Appellate Division of New Jersey vacated a default judgment of divorce because plaintiff-husband did not disclose in the Affidavit of Diligent Inquiry, pursuant to R. 4:4-5(c)(2), that:

(a) he was aware the defendant wife had departed for Pakistan and not for her mother’s residence in New York.

(b) he had her email address where defendant might be reached in Pakistan, the parties had emailed and the defendant had telephoned him from Pakistan.
R. 4:4-5

(c) also requires that in addition to publication, a notice in the form of a summons be sent by mail to the defendant's residence or the place where the defendant usually receives mail if such place be known:
If the plaintiff had disclosed knowledge of the email address, in addition to publication, the court would have required that an appropriate notice of the complaint be emailed to her so that actual notice to defendant would likely have been effected. Plaintiff's due diligence in making complete disclosure would have satisfied both the letter and spirit of R. 4:4-5.