Long Island Family Law and Mediation Blog
Most people know what in hand delivery service of process of court papers looks like as they have seen process servers depicted in TV Shows and movies. Courts prefer actual hand delivery of the court papers as that is the surest way to know that someone has received the papers. In New York this kind of service is enumerated under the Civil Practice Law and Rules (CPLR) Section 308(1). The process server swears before a notary in an affidavit that they hand delivered the papers. This affidavit of service is filed with the court. After starting an action, the CPLR allows for 120 days for the service to be made.
We also know that a lot of people like to avoid service of process. In a divorce, the question becomes, can I get a divorce if I do not know an exact address for my spouse or if he or she is ducking service? Yes, it is possible, but permission of the court needs to be obtained. In other words a motion needs to be made requesting the court to allow service by some alternate method such as posting the summons to a door and mailing (commonly known as “nail and mail” service), service by mail, or service by publication. If the time for service will be past the 120 day period from when the case was initiated, then permission to extend the time for service needs to be requested from the court as well. Good practice would be to include this request in the motion for permission to serve by publication or some other alternate method.
Short of serving by publication, if a demonstration can be made to a court that a good address for the Defendant is known, but the spouse is avoiding service, the court might order service by posting to the door and mailing to the address. In other types of action this type of service can be done without a court order after multiple attempts at different times are made but service is unable to be done. This is not the case for matrimonial actions, as mentioned, which must be served in hand unless the court allows for different service. Your divorce lawyer is best equipped to talk to about getting service done.
To get permission to serve by publication, it is necessary to show the court that with due diligence the spouse could not be served by any other method. An affidavit or an affirmation that details the due diligence undertaken to try to locate and serve the defendant spouse is made and submitted with the motion for service by publication. A process server or lawyer are authorized by statute to request the United States Postal Service to fill out an address verification form which will reveal: if a suspected address is good; any forwarding address on file; or if the spouse is not known at the given address.
Other sources should be checked to verify if addresses are listed such as the board of elections and phone directories. Neighbors and family can be consulted to check if they have any information about the whereabouts of the defendant spouse. All of the results should be documented in the affidavit or affirmation of due diligence which would be submitted as support of the motion to serve by publication. I use my public record database search subscriptions to try to locate defendants in these situations as well and include this information.
Often the spouse is located while going through these steps. In that case the hand delivery of the papers should be used. If the court service by publication in a newspaper (s), after the publication the defendant has time to answer or appear so as not to be in default. The idea is that the other spouse might see the publication or someone that they know could alert them to it. Because of the rationale behind service by publication, it is helpful to be able to tell the court that the area in which the newspaper is published is likely to alert the defendant because of his or her connection to the area. If they are in default then the Plaintiff or Plaintiff’s lawyer can ask the court to issue a default judgment. Sometimes the court will grant the divorce just based on the papers or request that a one sided trial, called an inquest go forward before deciding the case.
Default judgments are vacated rather liberally because it is the policy in New York to prefer deciding matrimonial and family law cases on the merits. If a defendant makes a motion to vacate a default based on an excusable default and what is called a meritorious defense, the court might open the case back up. There are other reasons that a default might be vacated which I detail in a prior blog article.
Please click around this blog and our site for more information about family law, divorce, and the different process available to deal with the issues. As always, call about your free consultation. It would be our pleasure to speak with you about it.