What do you do when you or someone you know is served with divorce papers? To formally commence a divorce action in New York, the Plaintiff, the one starting the action, buys an index number from the Suffolk County Clerk. The spouse is called the Defendant, and they are served with a Summons With Notice or Summons and Complaint. The papers are served by a process server or someone over the age of 18 years as well as not a party to the action. It is important to note here that the service of process cannot be done on a Sunday.
If you are the Defendant served with divorce papers, what you do next is very important and can affect the outcome of the matter.
Once you are served, you have 20 days to respond. You may respond with a Notice of Appearance or a formal Verified Complaint in response to either the Summons with Notice or Summons and Verified Complaint served on you.
When you don’t respond formerly within 20 days you risk the Plaintiff moving for a Default Judgment against you. This will cause the Court to conduct an Inquest against you. This inquest is a one-sided hearing, wherein the Plaintiff will basically get whatever he or she asks for.
Divorce Attorney Advice
The best advice I can offer someone served divorce papers is to consult with an experienced matrimonial attorney. If you do not consult an experienced matrimonial attorney, you may not be in a position to respond properly often due to a lack of understanding of your rights.
The next bit of advice I would offer to someone served with divorce papers is to read carefully the Automatic Stays under Domestic Relations Law Section 236(B)(2). This section of the law tells the Defendant what he or she cannot do.
Domestic Relations Law Section 236(B)(2) states as follows:
NOTICE OF AUTOMATIC ORDERS (D.R.L. 236)
PURSUANT TO DOMESTIC RELATIONS LAW ‘236 Part B, Section 2, as added by Chapter 72 of the Laws of 2009, both you and your spouse (the parties) are bound by the following AUTOMATIC ORDERS, which shall remain in full force and effect during the pendency of the action unless terminated, modified or amended by further order of the Court or upon written agreement between the parties:
(1) Neither party shall sell, transfer, encumber, conceal, assign, remove, or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars, and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney=s fees in connection with this action.
(2) Neither party shall transfer, encumber, assign, remove, withdraw, or in any way dispose of tax-deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court.
(3) Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrance of any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney=s fees in connection with this action.
(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital, and dental insurance coverage, and each party shall maintain the existing medical, hospital, and dental insurance coverage in full force and effect.
(5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners, and renters insurance policies in full force and effect.
Know The Language Of Law
Failing to follow the letter of language set forth in Automatic Orders, you will be in violation of the Order. This violation is subject to punishment by the Judge handling the matter.
Furthermore, when you are served divorce papers, there could be an Order To Show Cause. Additionally, a Motion may be included in the packet which requires your immediate attention. This is a lot more involved than just receiving a Summons With Notice or Summons and Complaint. An Order To Show Cause and a Motion are applications made by one of the parties seeking temporary relief.
- Child Custody
- Child Support
- Exclusive use and occupancy of the marital residence
- Other such temporary relief
It is important to respond to that motion in a timely fashion. The party making the Motion most often will be granted the requested relief. The stay will remain in effect during the pendency of the action and until further order of the Court.
The Plaintiff is the party commencing the action. As a Defendant, you have the right to file a Cross-Complaint. Often you can file a Pendente Lite Motion, which requests relief during the pendency of the action.
For these reasons, it is critical that you consult with an experienced matrimonial attorney. You may not know how to respond to the papers served on you. Also, you may not know what your rights are with respect to seeking your own requested relief.
Plaintiff Commencing Action Against Defendant
In addition to a Plaintiff commencing a divorce action, an attorney for the Plaintiff starts by sending a letter to the Defendant. The Plaintiff is asking for a response back from the Defendant or attorney if one has been retained.
Even though a letter does not officially start a divorce action, it is imperative to respond to this letter. If you do not you risk the attorney commencing an action that can create unnecessary litigation.
If you or someone you know is contacted by a spouse or attorney commencing an action or indicating an action will commence contacting my office is your first step. We offer a free consultation to discuss your rights and how you should proceed.
Do you need legal representation concerning a divorce or Family Court matter? I invite you to contact my office to set up a free consultation by calling 631-588-3155. We have been handling divorce and Family Court matters for over 33 years here on Long Island. Check out Phil Jusino’s book about divorce and family law titled Divorce: A Practical Guide. The book can be purchased on Amazon.com