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. Continue reading →