How do you get valid service in a Virginia court case?

Valid Service:  Under Virginia law there are four ways to achieve valid service of process.

1. Have a hard copy of the written complaint served on the party in person. VA Code Ann. §8.01-296
2. Deliver a copy of the written complaint to a particular person at the defendant’s place of adobe.  VA Code Ann. §8.01-296
3. Service through posting at front door.  VA Code Ann. §8.01-296
4. Service by publication. VA Code Ann. §8.01-316

Service by publication:  This fourth method of service is considered a substituted or constructive method of service, which is not proper unless the previous three methods of service cannot be effected.

• To effect service by publication one must first exercise “diligence” to ascertain the location of the party to be served. VA Code Ann. §8.01-316. 
• Grounds stated in the affidavit must in fact be true and not merely idle declarations having no factual basis for purposes of service by publication.  Khanna v. Khanna, 18 Va. App. 356 (1994).  The Virginia Court of Appeals states that “diligence” requires a devoted and painstaking application to accomplish an undertaking.   Id. 
• In another case, the Supreme Court of Virginia explained that Plaintiff’s mere informal contacts with defendant’s unnamed friends at two governmental agencies were not devoted and painstaking efforts to locate defendant and did not satisfy requirement of “diligence” to obtain order of publication after leaving process with Commissioner of Department of Motor Vehicles; plaintiff could have located defendant by calling a listed number, paying a small fee to DMV, or obtaining a subpoena for records of electric utility or U.S. Postal Service.  Dennis v. Jones, 240 Va. 12, 393 S.E.2d 390 (1990).                

Case reheard within 2 years:  VA Code Ann. §8.01-322 allows individuals who were served by publication to petition to have the case reheard within two years of the judgment, decree or order.

• § 8.01-322 intended to protect a party who has no knowledge at all of litigation affecting him.  Mitchell v. Mitchell, 227 Va. 31 (1984); Stephens v. Stephens, 229 Va. 610 (1985).
• Support proceedings are not barred.  When the only service upon wife was by publication, and she neither appeared in person nor by counsel, and the court entered a decree dissolving the bonds of matrimony by reason of the separation of the parties for more than two consecutive years immediately preceding the institution of the suit for divorce by husband, this section did not bar wife’s statutory right to an award of support against husband when her request was made more than two years after the final decree of divorce was entered.  Hayes v. Hayes, 3 Va. App. 499 (1986).

Challenging Service:   VA Code Ann. §8.01-277 states: “A person, upon whom process to answer any action has been served, may take advantage of any defect in the issuance, service or return thereof by a motion to quash filed prior to or simultaneously with the filing of any pleading to the merits.” 

• This rule only applies if service has been actually served on the defendant.  Lyren v. Ohr, 271 Va. 155, 160, 623 S.E.2d 883, 885 (2006). In instances where the defendant has not been served, this rule does not apply and thus the defendant cannot appear to both file a general appearance and assert protection of the statute and claim he was not served with process.  Id.