By: Akanksha A. Panicker
The first step before service is filing the paperwork at the county court to ensure the court has jurisdiction over the case and can thus allow the notification of the initiation of divorce proceedings to the other spouse. Filing the form with the county clerk usually involves a certain fee to be paid to obtain the index number. It is often required to fill out the Index Number Application Form. Consequently, the parties’ particulars will have to be provided (either by representative attorneys or the parties themselves.)
The process for filing divorce needs to be communicated as soon as possible insofar as the other spouse needs to address questions asked and actually have knowledge of what they are being asked. Consequently, service must be done in a reasonable amount of time. The stakes are higher in a divorce case, as the court must be sure that the receiving spouse has been made aware of the divorce case. Mostly, attorneys take care of the same. If not, however, there are ways of ensuring that divorce papers are served.
[1.0] PRELIMINARY REQUIREMENTS
It is common to serve the complaint personally with the summons to annul a marriage or for divorce. However, the envelope that contains the summons must bear the legend concerning the nature of the action. This means that this would require the words ‘action for a divorce’ or ‘action to annul a marriage’ be printed on the envelope, and the nature of any ancillary relief be specified.
It is also required that the affidavit of service state that the notice was written or printed boldly on the face of the copy of the summons. An additional burden of proof is placed on the affiant or officer insofar as they may be required to prove that the defendant is the individual to whom they executed the certificate, often even in a court of law. The affidavit of service consequently is often required to produce a physical description of the receiving party, “including, but not limited to, sex, the color of skin, hair color, approximate age, approximate weight and height, and other identifying features.”
Service of summons usually follows by S308 and 315 of the CPLR. However, the Domestic Relations Law specifies further requirements for divorce, annulment, separation, etc.
[2.0] METHODS OF SERVICE
[2.1] Service by Personal Delivery
Personal service is the default means of service in New York. Unless authorized by a judge, service of process in divorce proceedings must occur in person alone. To attempt alternate means of service would require filing an Affidavit of Attempted service first and foremost, especially if the defendant is evasive of service.
Service by personal delivery would require an unrelated individual to both the spouses and of legal age. This means of service works because of the receiving spouse, upon being served, signs, and dates the Service paper’s Acceptance. The defendant is provided with this firm alongside the Summons with Notice or Summons and Verified Complaint and Notice of Automatic Orders and Notice of Guideline Maintenance.
It must be remembered that the individual serving the papers is a ‘disinterested person.’ They must have no relation to either party at any time. The petitioner cannot serve the summons themselves to the receiving spouse unless the defendant themselves waives their right to service. A waiver request should be sent to the individual respondent, along with a copy of the petition, copy of any other divorce papers, waiver form, and a prepaid means for submitting the waiver form. The request to waive service may be handed over in person or may be mailed to the respondent. If the respondent does agree to waive service, the original document of consent to a waiver of service by the respondent should be filed with the court.
Even if one spouse does not reside in New York State, personal service must be ensured. A non-New York state resident who serves the defendant must be authorized to do service under that jurisdiction’s laws or a duly qualified attorney in that jurisdiction. A copy of the authorization to serve for that individual must be submitted.
[2.2] Mail Service
Mail service is an alternative to service by personal delivery. Like personal delivery, mail service will also require an acknowledgment form that needs to be dated and signed. An additional step herein, however, is the requirement to return the paper. Certified mail is preferable in this form of service, wherein the receiving spouse signs an attached paper on the envelope and returns the same as proof of service.
In service by mail, the summons and verified complaint, a notice of petition, and other relevant documents must be mailed to the receiving spouse by first-class mail with postage prepaid. It is required to send copies of a service statement by mail and is often required to include an acknowledgment of receipt form, which holds the same weight as an affidavit. Falsifying said form has a penalty akin to perjury and thus necessitates the filling-in to be done with the utmost care. Service can only be considered complete on the date of receipt by the respondent.
It must be kept in mind that New York is extremely strict as to service by mail and provides this option only under alternate service as deemed fit by a judge.
[2.3] Service Through a Process Server
Servers in New York must pass an educational test on the applicable rules and laws before issuing a license. This also applies to the subsequent renewal of the said license. However, there is no state-wide mandate on the said educational requirement, which complies solely with the local process serving requirements. Consequently, process servers in the five boroughs (Manhattan, Brooklyn, Bronx, Staten Island, and Queens) must be licensed through the New York City Department of Consumer Affairs. They must keep an electronic record of the past services that they have performed.
[2.4] Service by Publication
Service by publication occurs as a last resort and is considered to be constructive notice. Often when individuals have absolutely no connection to their spouse and cannot contact near family, service by publication is their resort. Newspaper ads are then considered acceptable forms of service. A copy of the newspaper is presented to the court with the ad running for a reasonable period in the area where the spouse resides.
To make use of service by publication, however, the defendant must comply with due diligence requirements in locating their spouse.
Timely service is crucial in a divorce proceeding. Documents must be served within 120 days of the first filing, failing which the complaint will be dismissed. Of course, requests for extensions may be granted under submitting the requisite forms to the Court, but the time limit granted is inflexible otherwise.
[3.0] ESSENTIAL DOCUMENTS THAT NEED TO BE SERVED.
The spouse needs to send out the service to have the original summons with themselves as it will be returned to the court for filing after service. However, the receiving spouse must be sent copies of [A.] the filed complaint for divorce, [B.] a copy of the summons, and [C.] a copy of the Joint Preliminary Injunction.
To start the divorce action, it is necessary to prepare the original and the two copies of the Summons with notice as under Form UD-1 or the Summons and Verified Complaint (Form UD-1a and Form UD-2.)
Upon receiving the documents and agree to the divorce, the receiving spouse must return the completed form within 40 days. Only after they fail to do so within the stipulated time can a default judgment be pronounced. The plaintiff can seek a default judgment under Rule 3215 and DRL § 211 if the defendant does not file a response with the court clerk.
If they agree to the divorce and the terms, the divorce is uncontested, and the defendant is required to sign the Affidavit of Defendant as per Form UD-7 proclaiming the same. However, if the receiving spouse filed an answer in disagreement with the terms underlined in the papers, the divorce is no longer uncontested. In a contested divorce, the court will have to make decisions on the issues that are in contention. A contested divorce would mean that the defendant puts forth a Notice of Appearance to the Court rather than ignoring the petition altogether, which would mean default of the case. In the latter case, if the defendant does not fill out the affidavit, then the person who did serve them is required to fill out an Affidavit of Service attesting to the service of the relevant documents themselves.
If the receiving spouse agrees to the divorce or defaults by failing to respond, the case will have to go on the court calendar following the remaining applicable forms. After these forms being verified, a Certificate for the Dissolution of the marriage will be prepared and filed by the County Clerk for the judge’s perusal. Upon combing through the documents and deeming them appropriate, the final verdict of divorce may be pronounced.
The New York divorce process is complicated. Contested divorces take even longer, with a Request for Judicial Intervention and the arduous financial discovery process. However, these steps ensure fairness on both parties, providing equanimity of reliefs and ensuring due process requirements in ensuring that the defendant gets a chance to question the terms in the petition itself.
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1.Pursuant to CPLR 306-a delineating the index number in action commenced in supreme or county court
2.Domestic Relations Law 232: Notice of nature of matrimonial action; proof of service
a. In an action to annul a marriage or for divorce or separation, if the complaint is not personally served with the summons, the summons shall have legibly written or printed upon the face thereof: “Action to annul a marriage,” “Action to declare the nullity of a void marriage,” “Action for a divorce,” or “Action for a separation,” as the case may be, and shall specify the nature of any ancillary relief demanded. A judgment shall not be rendered in favor of the plaintiff upon the defendant’s default in appearing or pleading unless either (1) the summons and a copy of the complaint were personally delivered to the defendant; or (2) the copy of the summons (a) personally delivered to the defendant, or (b) served on the defendant under an order directing the method of service of the summons by the provisions of section three hundred eight or three hundred fifteen of the civil practice law and rules, shall contain such notice.
b. An affidavit or certificate proving service shall state affirmatively in the body thereof that the required notice was written or printed on the face of the copy of the summons delivered to the defendant and what knowledge the affiant or officer who executed the certificate had that he was the defendant named and how he acquired such knowledge. The court may require the affiant or officer who executed the affidavit or certificate to appear in court and be examined in respect thereto.
3.NY Gen Bus L § 89-U (2014)
4.22 CRR-NY 202.16-a (Matrimonial actions; automatic orders.) as authorized by section 236(2) of the Domestic Relations Law.
5.NYC Department of Consumer Affairs (DCA). (n.d.). Retrieved October 19, 2020, from https://www1.nyc.gov/nycbusiness/description/process-server-individual-license
6.NY Gov: Form UD 1-a. (n.d.). Retrieved October 19, 2020, from https://www.nycourts.gov/LegacyPDFS/divorce/forms_instructions/ud-1ainst.htm
7.Verified Complaint: Form UD 2. (n.d.). Retrieved October 19, 2020, from https://www.nycourts.gov/litigants/divorce/forms_instructions/ud-2inst.htm
8.NY CPLR § 3215 (2016)
9.NY Dom Rel L § 211 (2016). Pleadings, proof, and motions.
A matrimonial action shall be commenced by filing a summons with the notice designated in section two hundred thirty-two of this chapter, or a summons and verified complaint as provided in section three hundred four of the civil practice law and rules. A final judgment shall be entered by default for want of appearance or pleading, or by consent, only upon competent oral proof or written proof that may be considered on a motion for summary judgment.
Where a complaint or counterclaim in action for divorce or separation charges adultery, the answer or reply hereto may be made without verifying it, except that an answer containing a counterclaim must be verified as to that counterclaim. All other pleadings in a matrimonial action shall be verified.
10.Affidavit of Defendant: Form UD-7. (n.d.). Retrieved October 19, 2020, from https://www.nycourts.gov/LegacyPDFS/divorce/forms_instructions/ud-7inst.htm
11.Notice Of Appearance:: New York:: General:: Free Legal Forms. (n.d.). Retrieved October 19, 2020, from https://forms.justia.com/new-york/general/notice-of-appearance-6777.html
12.Uncontested Divorce Forms. (n.d.). Retrieved October 19, 2020, from http://www.nycourts.gov/divorce/pdfs/Divorce-Packet-Instructions.pdf
“Forms UD-3 through UD-12 (include UD-7 only if signed by the Defendant).Form UD-3 (Affidavit of Service) and Form UD-4 (Sworn Statement of Removal of Barriers to Remarriage)need not be completed or filed if the Defendant has signed Form UD-7 (Affidavit of Defendant) and checked box 6b on the form, Form UD-8(3) Child Support Worksheet, Form UD-8a (Support Collection Unit Information Sheet) and Form UD-8b (Qualified Medical Child Support Order) need not be completed or filed if there are no unemancipated children of the marriage (see the definition on page 7). Form UD-8(2)(Maintenance Guidelines Worksheet) need not be completed or filed if neither party seeks maintenance as a payee under the Maintenance Guidelines Law. Form UD-8(1) (Annual Income Worksheet) is not required if neither party seeks maintenance or child support.”