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My husband refused to accept divorce papers from the server. He claimed to be his cousin. Does this count as being served?

New York, NY |

My husband has been refusing to accept papers for some time now. We aren't living together, and he will never answer the door or give any idea as to where he may be at any time. We've had significant trouble getting him served. Today he was located, and when asked if he was "XXX" he said no, stated that he was his cousin, and would not accept the papers from the server.

For purposes of "serving", would this qualify as having served him the papers? He never accepted the papers from the server and thus she still has them. He has since texted me stating that he "knew I was trying to set him up". I was hoping that the server's deposition, along with the text messages, could prove sufficient to serve as having been served. Also, perhaps I could have the documents left for him in his mailbox?

Attorney Answers 6


  1. If the process server gave him the papers and files an affidavit of service stating what transpires, particularly if the process server took a picture of the person he or she served, that should suffice.

    You may not serve by leaving documents in his mailbox, or by any other alternate means, without court permission.

    Under the rules governing the conduct of attorneys in New York it may be necessary to remind you that this answer could be considered attorney advertising.


  2. It is advisable that you provide the server with a photo of the defendant so that, in cases such as yours, the defendant can be served even if he is claiming to be somebody else.

    In any event, if you have additional proof that the address you are attempting to serve the defendant at is in fact the defendant's home address and the server provides an affidavit of due diligence detailing his/her attempts - you may make an application for alternate service whereby the court will, upon approval, allow you to serve by "Nail & Mail." That is leaving a copy of the summons at the door and mailing a copy by certified and regular mail (or as otherwise directed by the court).

    Please note that this general response to your inquiry does not establish an attorney-client relationship.You should consult with a competent attorney for advice regarding your particular situation.


  3. Utilize a professional process service agency and provide them with a photograph. If they can't get good service, they will provide an affidavit for you to use in an application to the court for alternative service.

    I am not your attorney and any posts/messages or responses to posts/messages can not establish an attorney-client relationship. www.PatchogueAttorney.com You should not rely upon free legal advice and I disclaim any liability for the results if you do.


  4. If you haven't already, provide a picture of him to the server. So long as the server can positively identify him from the picture, the server can then leave the papers with him (or drop them at his feet if he refuses to take the envelope). If he evades service in the future, you may need to file an application for substituted service. In any event, I highly suggest to schedule a follow-up consultation with a NYC Divorce lawyer.

    * If you found my answer to be helpful, or the "best answer," please feel free to mark it accordingly.


  5. As someone with a process service company, the server doesn't sound like she knows what she's doing

    First, she should have insisted on having a picture of your husband and, if one was not available, a good description of what he looks like.

    Then, if he refused to take the papers, she is supposed to leave them at his feet as service is the giving of the papers, not their acceptance

    At this point, have the process server wait for him when he leaves the house, with a pic/description, so she can throw the papers at him even if he refuses to accept them. 99% percent of the time my process server sees the server return to pick them up anyway, their curiosity being too great.


  6. He must be served in hand in person. If he accepted the documents in hand but lied as to his identity then that is sufficient. The server should have dropped the papers at his feet and walked away if he refused to accept the papers. You should then follow up with certified mail, and email to all last known addresses. If the court in which you are seeking a divorce rejects the server's affidavit of service then you may have to seek service by publication from the court. It is expensive however.

    Anne Peyton Bryant, Esq.
    305 Broadway, Suite 14 New York , New York
    www.matrimoniallawnewyork.com
    www.peytonbryant.wordpress.com
    Email: peyton@apbryantesq.com
    Office: 646.421.6505
    Cell: 917.747.8543
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