“Service”: this little mistake can ruin your divorce

TearsJoan was a mess: tears streamed down her face carrying trails of mascara with them. Her hair was matted in the back and she clenched a bag of papers. “I can’t tell you where we are at here if you won’t hand me what you received,” I reminded her. Reluctantly she showed me the Summons.

“He’s divorcing me!” Joan bawled. “How dare he give me these papers at dinner – it was supposed to be a talk about our future!” Poor Joan had a right to be angry. Obviously the communication skills were seriously lacking if her husband felt the need to give her divorce papers in lieu of a conversation about it first. But there was one, small technical problem: “That wasn’t valid service,” I told her.

In any divorce case, something must be filed with the Court to start the action – otherwise, how would a court know that a divorce is happening? In New York, one must file a Summons for Divorce (with either the distinction of “with notice” or with a “verified complaint”), and purchase an index number. The index number will be how the court identifies the case from start to finish.

The next step is vital. The person-to-person delivery of a divorce summons is required under New York law. Not only is your spouse on notice that the divorce is really happening (“I thought she was kidding!”), but the process confers jurisdiction (power or authority) over both parties so that the court may hear the case.

Joan was personally served, but by her husband. Parties to an action cannot serve each other. This is a measure to prevent fraud. In New York if you fail to answer the divorce summons, eventually your spouse can get a divorce without your participation. To ensure that you were on notice about the divorce, we need someone else to swear that you were handed that initial paper that started the case. In Joan’s case, we used the delay caused by the failed service to attempt negotiations. Eventually, her husband had to pay for a second index number and a process server to start the case in the proper way.

Sometimes proper service means the difference between fighting your divorce in your home state, or the state where your spouse ran off with his mistress. If Joan’s husband had moved to California, his failure to serve her the divorce summons properly would have been a vital mistake. By placing Joan on notice, she might have been able to serve him a New York divorce summons first – forcing him to fight in New York and sparing her from a fight in a state very far away.

Generally, service of process isn’t as dramatic.  My usual process server for the typical uncontested (aka “friendly”) case will call your spouse and coordinate dropping off the papers. This can be important because if the case is friendly, I don’t want to add the unpleasant surprise of a strange person showing up and causing stress or embarrassment at a bad time.

But, there is another server that I reserve for difficult cases, cases where embarrassment is part of package. She likes to dress like the UPS delivery guy. Once she even had to deliver flowers to the spouse’s office to get around Manhattan building security measures.

How service happens can depend on the case. The bottom line is we need to know where your spouse lives or works to get him or her served. Still, life isn’t always that simple. Sometimes a spouse may be gone either because the separation took place some time ago or because he or she just doesn’t want to be found.

Whatever the reason, after a diligent effort, courts will permit you to serve papers by alternate ways. You can seek special permission to serve your spouse through publishing a notice in the newspaper.  In one case, we received approval to email a spouse who was in Europe for work. Serving local family members is another option. Asking the court for a special way to serve your spouse takes extra time and may get pricey because you must pay the newspaper to publish your notice (you may remember those boring sections of the paper that have legal notices – yeah, that’s it!)

By server or newspaper, once your spouse is properly served the case can move forward.

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