When Service May Not Be Service in a Divorce Action.

An attorney can act as agent of service for just about anyone to accept service of process on behalf of a person or corporation. This can result by merely retaining the attorney after an action has been commenced, and the attorney filing and serving a notice of appearance therein. But very often attorneys represent to another attorney that he or she is authorized to accept service of process upon his or her alleged client. This is done to spare an individual the inconvenience or even embarrassment of being “served” process, and to reduce cost of litigation.

Most divorce attorneys seem to think that a mere verbal representation by the other lawyer that he or she is authorized to accept service in a divorce action is sufficient. No it is not. Most divorce attorneys seem to think that a email representation by the other lawyer that he or she is authorized to accept service in a divorce action is sufficient. No it is not. Most divorce attorneys seem to think that a signed letter on the other lawyer’s letterhead stating that he or she is authorized to accept service in a divorce action is sufficient. No it is not. An affidavit duly executed by the potential defendant authorizing his or her attorney and waiving the requirements of C.P.L.R. § 308(1) is required.

C.P.L.R. § 318 requires a designation of anyone as an agent of service to be in writing. Process in most actions may be served pursuant to any subsection of C.P.L.R. § 308. In a divorce action, C.P.L.R. § 232 requires that service of process must be completed by C.P.L.R. §308(1), also known as “in hand service.” If this proves impossible after a good faith diligent effort, then, upon motion of the Plaintiff, the Court may authorize an alternate form of service such as publication or upon a substituted person.

So, if your lawyer in a divorce serves the Summons with Notice or Complaint with the legend “Action for Divorce” (as is required to commence a divorce) upon the other attorney without first obtaining an affidavit executed by the prospective defendant waiving service pursuant to C.P.L.R. 308(1) and any other defect of service, and specifically authorizing his or her attorney to accept service on his or her behalf, service may not be good. At any time a motion for dismissal for failure to obtain personal jurisdiction may be successfully interposed by the defendant, even on the eve or close of trial.

So, if you do not have the defendant personally served, make sure your lawyer has a copy of the affidavit authorizing service upon the other lawyer signed NOT by the other lawyer, but by the defendant his or herself. Further, if the defendant is in the military, on active duty, make sure your attorney first obtains permission of the defendant’s commanding officer in writing before serving him or her. Otherwise once again, at anytime, the action may be dismissed for failure to obtain personal jurisdiction. Make sure you request (in writing) copies of the affidavit authorizing service and/or granting of permission to serve by the commanding officer and be persistent until you receive it.

 

For an interesting legal discussion of this, see Wichlenski v. Wichlenski, 67 A.D.2d 944, 413 N.Y.S.2d 211 (2d Dept., 1979).