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WHAT IF I CAN'T SERVE MY SPOUSE?
August 19, 2017

 

 

 

What if I can’t serve my spouse?

 

In a divorce action, after you file your divorce you have to be able to personally serve your spouse.   If you cannot do so then you have to get an Order from the Judge to allow for substituted service of process.

 

In New York you do so by way of an Exparte Order which you file with the matrimonial support office.  They have a special Request for Judicial Intervention for that you pick up from that clerk of the Court.

 

You actually prepare the Order yourself.  Below is the form you can use.   Consult a lawyer before attempting to file any form and do not rely upon it as it is provided for informational purposes only and not for legal advice.  Be sure you fill in the County you filed your divorce action and the name of parties in the upper caption of the case.  Also put in the index number which is located at the upper left-hand side of the Summons with Notice.   In the Ex Parte Order, you must refer to all documentation that supports your order and include and Affirmation of the attorney for the Plaintiff or the Plaintiff showing how you attempted service, an Affidavit by the process server showing how many times you attempt to serve the Defendant and your own Affidavit as to what other measures you took to apprise the Defendant of the divorce action.

 

 

STATE OF NEW YORK SUPREME COURT

COUNTY OF ___.

______________________________________________________________________

 

                                                                            

                                                                                        Ex Parte Order

                                                                                                                        

                             Plaintiff,                                         Index No.    

 

v.

 

 

                             Defendant.                                                   

 

______________________________________________________________________

         

           WHEREFORE, in matrimonial actions, this Court has absolute discretion to Order alternate service of process pursuant to the provisions of 232  of the domestic relations law and pursuant to CPLR Section 308 (5) in such manner as the court may decide, this without notice, if service is deemed impracticable under CPLR 308 (1, 2 and 4)  and where Plaintiff has made such showing;

WHERFORE, this Court may Order substituted alternate service by email where 1) other methods could not be conducted with due diligence pursuant to Civil Practice Law and Rules CPLR 308(1), (2), and (4) cannot be made after due diligence. DRL 232(a),  

and where Plaintiff has made such a showing;  

WHEREFORE, pursuant to the recent Appellate Division Second Department case of  Florestal v. Coleman-Florestal, 124 A.D.3d 578, 2015 WL 161618 (2d Dep’t 2015), affidavits of the plaintiff's process server attesting that he made numerous attempts to deliver the summons and complaint to the defendant at her residence were sufficient to establish, prima facie, the due diligence requirement and where Plaintiff has made such a showing;

WHEREFORE, in a matrimonial action, DRL 232(a) requires that the order authorizing such substituted service must prescribe the method of service and must give notice of a matrimonial action, and that Plaintiff has made such a showing; 

 WHEREFORE, pursuant to Alfred E. Mann Living Trust v. ETIRC Aviation S.a.r.l., 78 A.D.3d 137 (2010), service by email is deemed “reasonably calculated” to apprise defendant of action, and thus comports with requirements of due process, and where Plaintiff make the requisite showing herein that service by email in this case is “reasonably calculated to actually apprise defendant of the pending lawsuit;

WHEREFORE, Plaintiff has authenticated the Defendant’s email and text accounts by attaching recent, regular and multiple incoming and outgoing electronic mail as recently as April 2017; and that the following addresses are:  email: _____ text number ______, phone number ________, mailing address of Defendant______.

WHEREFORE, where Plaintiff has shown this Court that the Defendant has ACTUAL KNOWLEDGE of these proceedings.

WHEREFORE Plaintiff has attempted personal service on four occasions as noted in the Attached Affidavit of Attempted service through the following company located at ____________,

It is:

 

SO, ORDERED:

 

That leave is hereby granted to Plaintiff to serve the Defendant with the summons, verified complaint, by substituted service of process, to wit, through text, email, and telephone,  (or through whatever other means this court deems just and proper) within thirty (30) days of the execution of this Order through the below provided and authenticated email, text, and phone accounts of Defendant, ___at the above mentioned addresses text numbers and email addresses and through the below provided telephone and electronic accounts; to wit: email to _______ text ________and Phone call or leaving message on voicemail to ________ at phone number  located at _______.

 

SO ORDERED:

                                      By:  ________________________
                                            Hon. ______, JSC/Referee

 

Dated:   April ___2017