Ducking Out of Divorce Process and JurisdictionWe are often confronted with the problem of serving papers on a reluctant spouse who either doesn't want to get divorced, or just wants to make it difficult for the party seeking to get divorced.  The motivation for "ducking service" can be monetary (they don't want to start paying support, a lawyer, or something else) or simply being difficult. 

Recently, hip-hop star Dr. Dre was served with divorce papers by his estranged wife while attending his grandmother's funeral.  Given Dr. Dre is a public figure and likely not hard to locate, the act of having him served at the funeral was almost certainly designed to infuriate him - especially in light of the fact that the case had already been ongoing and the papers being served were about the collection of legal fees.  But there are circumstances where an action as extreme as this may be warranted.

Ducking Service in Divorce Process

"Ducking service" is something that happens occurs when a party doesn't want to allow a divorce proceeding to start.  In order to start a divorce action, the summons must be served upon the other party by personal in-hand delivery by a non-party over the age of 18.  This requirement often lends itself to providing the service party with an opportunity to delay the proceedings by avoiding being served.  

There are ways to counteract the efforts to avoid service.  Communication with your lawyer is important.  Knowing your spouse's work schedule, travel habits, or frequent "hangouts" certainly helps.  Identifying the type of car your spouse drives, a license plate number, the train they take to work, or where they report to work and what time they leave, all can help a process server efficiently gain enough access to get the papers served.

Why is service important?  In New York, a divorce cannot be obtained without first getting jurisdiction over the other spouse.  Jurisdiction is what gives the Court the legal authority to determine any issues in a divorce.  If personal jurisdiction is not obtained, then a divorce cannot be granted.

What if I can't get my spouse personally served? 

There are circumstances where personal jurisdiction cannot be obtained by personal delivery of the summons.  These might include where the parties have been separated for a really long time, and have moved on with their lives, without communicating.  In cases like this, its important to establish in court that diligent efforts have been taken to ascertain the locations of the missing spouse, and, once the Court has been satisfied that these efforts have been unsuccessful in getting the party served, the Court may grant other means of service.  These can include publication in a newspaper for 4 consecutive weeks, electronic service - either by email, Facebook post, Instagram, or "nail and mail" service.  The manner and means of effectuating service by any of these methods will depend on the level of proof established, and the reliability that effectuating service in any of these manners will reasonably provide notice to the other side.  For example, in a case we participated in a few years ago, the Court established that publishing to a Facebook account without establishing that the account is active would be like allowing someone to mail a summons to a building that we know has already been demolished.  

New York Divorce Attorneys Serving Brooklyn, Queens, Long Island

Without service of the initial papers on the other side, a divorce case, no matter how strong, will go nowhere.  Be proactive and remain in as much reasonable contact as possible so that your papers can get served on your spouse.  These efforts will save you time and money in the long run. If you are seeking a divorce, contact our New York divorce attorneys today. 

Ted Alatsas
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Brooklyn, New York Trial Attorney Practicing Family Law, Elder Law, Asset Protection and Bankruptcy Claims
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