Service of Divorce Papers by E-mail

It is well-established that, with prior court approval, divorce papers may be served by e-mail.

Note, however, that this option is only available if you are unable to locate your spouse and have the papers served upon him/her personally.

This rule was first announced way back in 2002, in the case of Hollow v. Hollow, 193 Misc. 2d 691 (Supreme Court, Oswego County 2002).

Relevant portion here:

Service of Process by E-Mail:


Civil Practice Law and Rules § 308 (5) provides: "Personal service upon a natural person shall be made by any one of the following methods: in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section." It is well settled that: Fundamentally, a court is without power to direct expedient service pursuant to CPLR 308 (5) absent a showing by the moving party that service under CPLR 308 (1), (2) or (4) is impracticable (see, Dime Sav. Bank of N.Y. v Mancini, 169 AD2d 964). Although a showing of impracticability does not require proof of due diligence or actual attempts to serve a party under each and every method prescribed in CPLR 308 (see, Hitchcock v Pyramid Ctrs. of Empire State Co., 151 AD2d 837; Saulo v Noumi, 119 AD2d 657), the movant will be required to make a competent showing as to the actual prior efforts that were made to effect service (see, Markoff v South Nassau Community Hosp., 61 NY2d 283, 287 n 2; Porter v Porter, 227 AD2d 538, 539; Cooper-Fry v Kolket, 245 AD2d 846 694*694 [3d Dept 1997]).[1] Further, the fact: "[t]hat the defendants reside[] in a foreign country [does] not, by itself, relieve the plaintiff of her obligation to make a reasonable effort to effectuate service in a customary manner before seeking relief pursuant to CPLR 308 (5)." (Tetro v Tizov, 184 AD2d 633, 635 [2d Dept 1992], citing LTD Trading Enters. v Vignatelli, 176 AD2d 571; Siegel, NY Prac § 75, at 99 [2d ed].)

As more fully set forth above, this court finds that the plaintiff in the instant action has, under the circumstances, made reasonable efforts to effect service both through Interserve and through the defendant's employer, and that the record before this court demonstrates that service pursuant to Civil Practice Law and Rules § 308 (1), (2), (4) is impracticable.[2]

While the question before the court is one of first impression in New York, the effect of emerging technologies of the Internet on the common law of this state is not (see, e.g. Armouth Intl. v Haband Co., 277 AD2d 189 [2d Dept 2000]; Citigroup, Inc. v City Holding Co., 97 F Supp 2d 549, 570-571 [SD NY 2000] [applying CPLR 302] [long-arm jurisdiction and Web pages]; Firth v State of New York, 98 NY2d 365 [applicability of the single publication rule to defamation on the Internet]; Lunney v Prodigy Servs. Co., 94 NY2d 242 [1999] [liability of an Internet service provider for defamation]).

This court's independent research has revealed two cases in which service of process by e-mail has been approved (see, Rio Props. v Rio Intl. Interlink, 284 F3d 1007 [9th Cir 2002]; In re International Telemedia Assoc., 245 BR 713, 717 [ND Ga 2000]). In Rio Props. v Rio Intl. Interlink (supra at 1017), the United States Court of Appeals for the Ninth Circuit approved a service of process by e-mail under Federal Rules of Civil Procedure, rule 4 (f) (3), observing:

"To be sure, the Constitution does not require any particular means of service of process, only that the method selected be reasonably calculated to provide notice and an opportunity to respond. See Mullane, 339 U.S. at 314, 70 S.Ct. 652. In proper circumstances, this broad constitutional principle unshackles the federal courts from anachronistic methods of service and permits them entry into the technological renaissance. As noted by the court in New England Merchants, in granting permission to effect service of process via telex on Iranian defendants:

"Courts * * * cannot be blind to changes and advances in technology. No longer do we live in a world where communications are conducted solely by mail carried by fast sailing clipper * * * ships. Electronic communication via satellite can and does provide instantaneous transmission of notice and information. No longer must process be mailed to a defendant's door when he can receive complete notice at an electronic terminal inside his very office, even when the door is steel and bolted shut." (Rio Props. v Rio Intl. Interlink, supra at 1017 [citation omitted].) In defining e-mail, the Court of Appeals observed in Lunney v Prodigy Servs. Co. (supra at 248): "E-mail is the day's evolutionary hybrid of traditional telephone line communications and regular postal service mail. As one commentator explained, `[t]o transmit a message, one must have access to an on-line service's e-mail system and must know the recipient's personal e-mail address'" (see, Luftman, Note, Defamation Liability for On-Line Services: The Sky is Not Falling, 65 Geo Wash L Rev 1071, 1081 [1997]). Once this is accomplished, a person may communicate by composing a message in the e-mail computer system and dispatching it telephonically (or through some other dedicated electronic line) to one or more recipients' electronic mailboxes. A recipient may forward the message or reply in like manner.

In the instant action, the defendant has, in essence, secreted himself behind a steel door, bolted shut, communicating with 696*696 the plaintiff and his children exclusively through e-mail.[3] While this court is cognizant of the concerns associated with service by e-mail, including the difficulty of verifying the defendant's receipt of the message: it is hornbook law that a constitutionally proper method of effecting substituted service need not guarantee that in all cases the defendant will in fact receive actual notice (Dobkin v Chapman, 21 NY2d 490, 502). It suffices that the prescribed method is one "reasonably calculated, under all the circumstances, to apprise [the] interested part[y] of the pendency of the action" (Mullane v Central Hanover Trust Co., 339 US 306, 314; Bossuk v Steinberg, 58 NY2d 916 [1983]; see also, Harkness v Doe, 261 AD2d 846, 847 [4th Dept 1999]). Here, the court finds that service directed to the defendant's last known e-mail address, as well as service by international registered air mail and international mail standard, is sufficient to satisfy the due process requirements of Civil Practice Law and Rules § 308 (5).