Service by Publication in New York: Divorce Actions

Similar documents
Sample STATE OF NEW YORK CREDITOR. ,, SUMMONS Plaintiff, Index No. -vs- Date Filed: DEBTOR d/b/a. ,, Defendant. TO THE ABOVE-NAMED DEFENDANT:

INSTRUCTION SHEET FOR CHANGING AN ADULT S NAME

READ THIS BEFORE COMPLETING THE FORMS!!! INSTRUCTIONS FOR MOTION TO CONTINUE HEARING

Filing a Civil Complaint

KENT COUNTY.

Court #3 July 1, 1998

HOW TO SERVE (DELIVER) LEGAL PAPERS IN OREGON

M.R.C.P. Rule 4 Page 1

Termination of Guardianship Minor. Forms and Procedures. For Wyoming MOVANT

PACKET M FILING A MOTION IN A PARENTING PLAN ACTION

Avoiding Probate with Small Estates with Real Property Packet

COMPLAINT FOR SEPARATE MAINTENANCE WITHOUT MINOR CHILDREN

COMPLAINT FOR DIVORCE

What does it mean to domesticate a foreign judgment?

SUGGESTIONS FOR OPERATORS OPTIONAL PROCEDURE FOR SPACING-RELATED APPLICATIONS OCC-OAC 165:

For Preview Only - Please Do Not Copy

CHILD CUSTODY OR VISITATION AND OR/ SUPPORT

Information or instructions: Motion Order Affidavit for substituted service package PREVIEW

READ THIS BEFORE COMPLETING THE FORMS!!! INSTRUCTIONS FOR MOTION FOR MODIFICATION

REPLEVIN PACKET. Information or forms provided by the Clerk of Court should be considered as basic

UNLAWFUL DETAINER (not Eviction)

!" #$ % # $ ##!# & '((!) * % ( * % '+ ( ((* % ,-- (- (. ) * % '(. ). * % () ) ( / &0#!!0 &102!

Information & Instructions: Motion to dissolve writ of garnishment. 1. A Motion to dissolve a Writ of Garnishment should set forth the following:

Sample required format for Judgment of Foreclosure and Sale (with provisions for attorney s fee and additional allowance)

GRANDPARENT VISITATION FORM PACKET

COMPLAINT FOR CUSTODY AND/OR VISITATION

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF Applicant's County of Residence

POVERTY AFFIDAVIT. This packet contains forms and information on: How to File a Case When You are Financially Unable

AFFIDAVIT OF PLAINTIFF (FOR UNCONTESTED DIVORCE)

In replevin actions service of process may be made as provided by Rule 54. (Adopted April 4, 1977, effective December 1, 1977).

COMES NOW, the plaintiff and for (his) (her) cause of action, alleges and shows

NEW MEXICO PROBATE JUDGES MANUAL 2013

Download Nomination Petitions - IMPORTANT NOTICE

IN THE TENTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF CHURCHILL

INSTRUCTIONS FOR FILING AN APPELLATE TERM, SECOND DEPARTMENT ORDER TO SHOW CAUSE

EXTRACT OF MINUTES. Meeting of the Town Board of the. Town of Woodbury, in the. County of Orange, New York. June 16, 2016 * * *

Appellate Term Docket Number: Upon the annexed affidavit of, dated, 2, and the papers annexed thereto,

Form 2 Request for Social Security Number. One packet for your records containing the following completed forms:

****THE SHERIFF S OFFICE MUST BE PAID BY CHECK OR MONEY ORDER. CASH IS NOT ACCEPTED.****

BEFORE THE BOARD OF SUPERVISORS OF MARICOPA COUNTY

CENTRAL ARIZONA WATER CONSERVATION DISTRICT CENTRAL ARIZONA GROUNDWATER REPLENISHMENT DISTRICT P.O. Box PHOENIX, ARIZONA

1752(2) Domicile: (Street/Number) (City, Village/Town) (State) (Zip Code)

INSTRUCTIONS FOR APPOINTMENT OF GUARDIAN OF A MINOR (MINOR S PERSON ONLY, ESTATE ONLY OR PERSON & ESTATE)

FILED: NEW YORK COUNTY CLERK 07/20/ :42 AM INDEX NO /2013 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/20/2015. Exhibit A

INSTRUCTIONS FOR MOTION TO VACATE DISMISSAL

DISTRICT COURT DIVISION

DIRECTIONS FOR FILING A MOTION TO SET ASIDE A DEFAULT JUDGMENT IN DISTRICT COURT

INSTRUCTIONS FOR CHANGE OF NAME OF A MINOR

FILED: NEW YORK COUNTY CLERK 08/21/ :59 AM INDEX NO /2017 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/22/2017

FILED: NEW YORK COUNTY CLERK 07/26/2013 INDEX NO /2013 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/26/2013

INSTRUCTIONS/GUIDELINES for PRIMARY CANDIDATE(S) Running for SUSSEX COUNTY OFFICE

NEW CASTLE COUNTY.

PUBLIC HEARING INFORMATION PACKET

Affidavit & Summons of Continuing Garnishment (Ga. Code Title 18, Amended 1981) Affidavit for Continuing Garnishment

HOW TO FILE A PETITION FOR A NAME CHANGE

Oklahoma Long-Arm Statute Okl. Stat. tit. 12, 2004

AFFIDAVIT AND ORDER FOR PUBLICATION OF SUMMONS

Definitions of Legal Terms

Rule 4. Process. (a) Summons Issuance; who may serve. Upon the filing of the complaint, summons shall be issued forthwith, and in any event within

PROCEDURE TO FILE AN EVICTION

For Preview Only - Please Do Not Copy

Removal and Storage of Abandoned Vessels & Lien Foreclosure Procedures (O.C.G.A )

CITY OF RICHMOND PERFORMANCE BOND

Guardianship - Petition - 17a Intellectual GMD-1.pdf Guardianship - Petition - 17a Intellectual GMD-1A.pdf Guardianship - Petition -

Original - Court 1st copy - Defendant CASE NO. JUDICIAL DISTRICT

HOW TO FILE A PETITION FOR A NAME CHANGE

APPLICATION TO WAIVE MEDIATION FEES (State Standardized Form) GENERAL INSTRUCTIONS

POVERTY AFFIDAVIT. This packet contains forms and information on: How to File a Case When You are Financially Unable IMPORTANT

Plaintiff. Defendants. UPON READING the annexed Affidavit of Bruce A. Hubbard, duly affirmed and

PROOF OF EXECUTION BY SUBSCRIBING WITNESS WITNESS SAW EXECUTION

Instructions for Pro Se Expungement of No Conviction Record

PETITION FOR WRIT OF HABEAS CORPUS AND EMERGENCY RETURN OF CHILD PACKET

INSTRUCTIONS AND FORMS FOR FILING PRO SE CUSTODY ACTIONS IN POTTER COUNTY, PA

Setting Aside Record of Arrest Oregon Revised Statute

TOM GREEN COUNTY BAIL BOND CORPORATE SURETY LICENSE APPLICATION

****THE SHERIFF S OFFICE MUST BE PAID BY CHECK OR MONEY ORDER. CASH IS NOT ACCEPTED.****

HOW TO FILE AN ARD EXPUNGEMENT

MUNICIPAL OFFICE PETITION NOMINATING CANDIDATE FOR PUBLIC OFFICE FOR PRIMARY ELECTION REQUIRED NUMBER OF SIGNATURES:

EXHIBIT 21 U-7 Page 263 FIRST AMENDMENT TO GROUND LEASE THIS FIRST AMENDMENT TO GROUND LEASE ( First Amendment ) is made as of the day of January, 201

ANSWER PACKET NON-SPECIFIC INSTRUCTIONS ON PREPARING AN ANSWER

INSTRUCTIONS FOR FILING A GARNISHMENT OF PERSONAL EARNINGS OF JUDGMENT DEBTOR (Ohio Rev. Code Chapter 2716 et seq.) (REVISED 2/3/2015)

PETITION FOR ANNEXATION THE VILLAGE BOARD AND VILLAGE CLERK OF THE VILLAGE OF WADSWORTH, LAKE COUNTY, ILLINOIS.

FILED: KINGS COUNTY CLERK 05/03/ :03 PM INDEX NO /2016 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/03/2018

NC General Statutes - Chapter 1A 1

POWER OF ATTORNEY OVER A MINOR

DEFINITIONS PAPERWORK IN YOUR CASE

COMPANIES ACT FORMS REGULATIONS

***FOR BACKGROUND CHECK ONLY***

Referendum. Guidelines

BOND FORFEITURE Table of Contents

INSTRUCTIONS FOR APPOINTMENT OF A GUARDIAN ADULT

Divorce Judgment and Corollary Relief Order (without oral evidence)

HIGHLANDS COUNTY COURTHOUSE CIVIL DIVISION

NOMINATING PETITION FOR PRIMARY CANDIDATES

The Motion asks the Court to do something in a case that already exists.

NOMINATING PETITION FOR PRIMARY CANDIDATES

- against - NOTICE OF MOTION

IN THE SUPERIOR COURT OF COUNTY STATE OF GEORGIA., ) ) Plaintiff, ) ) v. ) Civil Action No. ) ), ) ) Defendant. )

NOMINATING PETITION FOR PRIMARY CANDIDATES

CHAPTER 7 ANNEXATION Chapter Outline

Transcription:

This material is provided to answer general questions about the law in New York State. The information and forms were created to assist readers with general issues and not specific situations, and, as such, does not replace the legal advice or representation of an attorney. Because of this and because of unanticipated changes in the law, the Rural Law Center of New York (RLC) makes no claim that this information will achieve the results you desire. Also, the RLC disclaims any responsibility for actions taken based on this material. If you are seeking advice about a specific legal issue, you should contact an attorney licensed to practice in New York State. Rural Law Center of New York, Inc. Service by Publication in New York: Divorce Actions Note: A packet of divorce-related forms with instructions is available at your local County or Supreme Court, or at www.nycourts.gov/litigants/divorce. That packet should be used in conjunction with these instructions, because these instructions relate to the service requirement of a divorce action. You should review the entire divorce packet first, and familiarize yourself with the service requirement specifically. Service by publication is an alternative form of service that will lengthen the process of obtaining a divorce and will likely increase your costs. All efforts to find your spouse should be made before resorting to this method of service. 1. What is Service? Service is the delivery of a summons or other legal paperwork to a party in a lawsuit. Service is completed upon proper delivery to the party and must be delivered according to specific procedures set forth in New York state law. Typically, a summons is personally delivered to a defendant in a lawsuit. This is the preferred method of service because other methods of service may require special permission from the court. Serving someone by publishing the summons in a newspaper is one of the special methods that requires permission from the court, and is only available where the plaintiff cannot find the defendant after making diligent efforts to do so. 2. Planning for Service upon the Defendant: You, as plaintiff in the divorce action, will have 120 days from the date of filing a summons with the County Clerk to serve that summons on the defendant (Form UD-3 in the Uncontested Divorce Packet). If you fail to serve the defendant within this time period, your divorce action may be dismissed. This is why it is important to determine whether you will be able to locate the defendant before filing. If you do not know where the Defendant is located, you must first make efforts to find them. You should document all efforts, because later, when you ask the court to allow you to serve the defendant by publication, you will need to show that you tried to find the defendant and could not. 3. Service when you cannot find the Defendant: 1

When you cannot find the defendant, the court may permit you to serve the defendant by publishing the summons in a newspaper instead of serving the summons personally upon them. The intended result is that the defendant will either read that newspaper or someone who knows the defendant will read the newspaper and then notify the defendant about the summons. This method is unlikely to provide notice of the pending action, but when you cannot find the defendant the court should allow you to use this method as a last resort. 4. Procedure for Service by Publication: This is a two-step process. First you must get the court s permission to serve by publication, and second you must carry out the service according to strict guidelines. i) Getting the Order: a. Before completing any paperwork, you should begin by attempting to locate your spouse. Note and record all failed attempts; you will need to document those attempts later for the judge. Try sending a letter, calling mutual acquaintances, and contacting any known family. Send a letter to the defendant s last known address, and note if the letter is returned to you or if you never hear back. Send the letter from the post-office and use certified mail with return receipt requested. If you find out where your spouse is located, even if it is in another state, you will have to serve them personally. If you are unsuccessful in all of your attempts, then you may ask the court to allow you to serve your spouse by publication.. b. Before filing any divorce paperwork with the County Clerk, you need to go to your County Court Clerk s Office to inquire about local procedures. Tell the court clerk that you cannot locate your spouse and are interested in serving them with divorce papers by publication. Bring a completed Summons with Notice with you. If you are low-income, tell the clerk that you will not be able to afford newspaper fees, and that you would like to have the summons placed in the newspaper for no charge. The clerk may or may not be able to help you arrange this. Make a list of what the clerk tells you to do. c. The clerk will likely tell you that you need to apply to a judge for an order permitting service by publication. You will have to provide the judge with an unsigned order, and an application (called a motion ) asking 2

the judge to sign the order, accompanied by an affidavit (a sworn/notarized statement) containing facts showing that service could not be made personally because the defendant could not be found.* These facts will be based upon your earlier attempts to locate the defendant. *It is unlikely that the clerk will provide you with any of these documents: the motion with affidavit, or the proposed order. You will need to draft these yourself. Model versions of these forms, and any other forms discussed in this guide are available at the end of this guide. d. Use the models included with these instructions to complete the order and motion/affidavit with your specific information, and file them with the County Clerk. You will have to buy an index number at this time, or make an application for waiver of fees if you cannot afford to purchase the index number. Your divorce case has not yet begun at this point, but you will use this same index number throughout the future divorce proceedings. ii) Serving by Publication a. After the order is signed by the judge and issued to you, you may commence your divorce action by filing your first round of divorce paperwork with the County Clerk. Make sure to file the signed order and the motion/affidavit along with this paperwork. b. Next call the designated newspaper, and explain to them that you have a summons with notice* you want to publish. They will give you their procedure and costs for submission. This may cost up to several hundred dollars. The first publication of the summons must be made within thirty days after the order was granted. Service is complete on the twenty-first day after the date of first publication. The summons must be published in each of those three weeks. *A notice must be published with the summons. A model notice is included with the other model forms at the end of this guide. c. You will need to get an affidavit of service from the printer/publisher of the newspaper. This is a sworn statement saying that the summons was printed. A model affidavit is provided with the forms at the end of this guide, however, talk to the newspaper to find out who has the authority to sign the affidavit. The affidavit of service will be your proof that the defendant was served by publication, and should be filed with your second round of divorce paperwork. 3

End of Instructions, proceed to Model Forms below. P R E S E N T: At an I.A.S. Part of the Supreme Court of the State of New York, held in and for the County of, at the Supreme Courthouse, (city), New York, on the day of, 20. HON. Justice. Index No. Plaintiff, -against- ORDER FOR SERVICE OF SUMMONS BY PUBLICATION Assigned Judge Defendant. On reading and filing the motion and affidavit of the plaintiff sworn to on, and it satisfactorily appearing therefrom that service of the summons by publication on defendant is authorized by Section 315 of the Civil Practice Law and Rules, it is ORDERED that the summons in the above-entitled action be served on defendant, by publishing the same together with a notice of the object of the action in the, which is hereby designated as the most likely to give notice to the defendant, one in each of three (3) successive weeks, the first publication to be made within thirty (30) days after the granting of this order; and it is further The Court being satisfied that a place where the defendant probably would receive mail cannot with due diligence be ascertained, it is ORDERED, that pursuant to Rule 316(b) of the Civil Practice Law and Rules the mailing of copies of the summons and notice to the defendant be dismissed with. Dated: 4

E N T E R. Justice of the Supreme Court SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF -against- Plaintiff, Index No. MOTION FOR SERVICE BY PUBLICATION AND AFFIDAVIT Defendant. STATE OF NEW YORK ) COUNTY OF ) ss: Pursuant to Section 315 of the Civil Practice Law and Rules, the undersigned moves for service by publication. The address of the party to be served is unknown and cannot be ascertained by reasonable diligence, and cannot be served by any other prescribed method. Any real or personal property of the party to be served in County is not at issue. The undersigned respectfully requests that this court order service by publication for three successive weeks in the, a newspaper of general circulation in the county where the action is pending. The undersigned, being duly sworn, states as follows. 1. I have not seen, heard from, nor had contact with the party to be served since approximately. 2. I have been searching for the other party since. 3. I sent a letter to the party s last known address of and it was returned to me one week later. 4. Other attempts to locate the other party include: 5

5. I do not know the whereabouts of the other party. Date: Signature of Plaintiff Personally appeared the above named plaintiff and made oath that the foregoing statements voluntarily made and signed are true. Date: Notary Public Notice Accompanying Summons Publication To : The foregoing summons is served upon you by publication pursuant to an order of the Supreme Court of the State of New York, County of, dated, and filed in the office of the clerk of the County of at, New York. The object of this action is to obtain judgment against the defendant for an absolute divorce, that the bonds of matrimony between the plaintiff and the defendant be forever dissolved and such other, further and different relief as may be just and proper. Dated:, New York Yours etc., 6

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF Plaintiff, Index No. -against- AFFIDAVIT OF PUBLICATION Defendant. STATE OF NEW YORK ) COUNTY OF ) ss:, being duly sworn, deposes and says: 1. S/he is the publisher [or printer or principal clerk of the publisher or printer or foreman of the publisher or printer] of, a newspaper published in the City of, County of, by the company; that the summons in this action with the notice subjointed thereto copies of which are hereto annexed, have been regularly published in the once in each of three (3) successive weeks, the first publication being on, and the last publication on. 2. The summons, as published, contained on the face thereof the words Action for a divorce. Signature Name (Print) Sworn to before me this day of,. 7

8