Brian D. Perskin & Associates

Divorce by Default in New York State

In an ideal world, every divorce would proceed without incident and would lead to an amicable split between spouses. However, that isn't always the case. There are many instances when a divorce is contested, which will often result in lengthy court battles. Or sometimes, a party must proceed with a divorce by publication if the other party cannot be located. Much like contested divorces, this can be a time consuming and costly process. But what about the cases where the defendant chooses to ignore the deadline for response stated in the summons that was served upon them?

To officially file for divorce, you must notify both the courts and your spouse of your intentions. You will need to file a Summons and Complaint, as well as have the document served personally upon your spouse. Once your spouse is in receipt of the summons with complaint, they have 20 days to respond (depending on whether or not they live out of state), which can be done in the following ways: 1) File a Notice of Appearance; 2) File an Answer with Counterclaim; 3) Request that they be given a copy of your Verified Complaint; or 4) Respond with a waiver stating that they do not wish to be involved in the action. It should be noted that your spouse must respond to your summons via the courts within the allotted time frame, and not respond to you personally without filing documents. If they fail to do so within 20 days (depending on their residency), then they will be considered in default.

New York State requires the plaintiff to file an Affidavit of Service, which is proof that you sent your Summons and Complaint to be served upon the defendant. Usually the Affidavit is filed when you serve the summons, but you are allowed up to 120 days to accomplish this. If your affidavit is filed, and your spouse fails to respond, you may petition the court for a Default Judgment. In doing so, you are informing the court that your spouse has not expressed an interest in the divorce action. If the courts grant your request for a default judgment, all of the stipulations listed in your Summons with Verified Complaint will be ruled in your favor.

By their nature, default divorces are uncontested. There are some couples who elect to get a default judgment in an attempt to avoid legal fees. They do this by agreeing beforehand which spouse will file the Summons, and which will choose to not respond to it. This isn't necessarily a good idea. One should never proceed with a matrimonial or family law matter without proper representation because their legal rights will not be looked after nor protected.

If you are contemplating a divorce, contact an experienced family law attorney. The attorneys at the law firm of Brian D. Perskin & Associates have a combined 40+ years of experience handing both simple and complex matrimonial and family law issues. Contact the firm by phone at (718) 875-7584 to schedule a free consultation in the centrally located Brooklyn Heights office today!