Reviewed by Michael Colin Barrows, Esq.
Key Takeaways
- Your spouse has 120 days to serve you, not 10.
- In a contested case, your spouse cannot serve you personally.
- You have 20 days to respond if served personally in New York, 30 days otherwise.
- The automatic orders bound you the moment you were served. Do not move money or change insurance.
Divorce is a complex emotional process as it is. But being served divorce papers unexpectedly, or otherwise unwillingly, just makes matters worse. If you feel at a loss in handling this situation, follow along to discover how one of the seasoned divorce attorneys in Long Island at Barrows Levy PLLC can support you through every step of this process.
What Is the Official Way to Serve Divorce Papers in the State of New York?
If you were caught off guard by being served divorce papers, below is a comprehensive guide on how the process was handled, according to New York state guidelines:
- Before you were served divorce papers, your spouse likely hired an attorney who prepared a divorce complaint and filed it with the New York court. This had to be done to begin the divorce proceedings, as it was used as proof that your spouse was suing you for divorce.
- Then, you were likely served a document titled Summons and Complaint for Divorce. This document states that your spouse is suing you for divorce and also outlines what they want to receive in the settlement agreement. Later on, the New York court will use this document to hear and determine your case.
- Also, the papers do not have to reach you within ten days of the filing date. In accordance with CPLR 306-b, a spouse has 120 days from the date the summons was filed with the County Clerk’s Office to serve you with papers.
- You should also note that, unless it is an uncontested divorce in which you are signing and returning an Affidavit of Defendant, the filing spouse cannot serve you personally; CPLR 2103(a) requires service to be completed by someone over 18 who is not involved in the case. If this is not the case, then contact our firm today to fight against it.
Which Papers Were You Actually Served With?
Not every divorce in New York follows the same process, nor do they all use the same documents. How you respond depends on what document you have. A Summons with Notice is a shortened version that includes the grounds on which your spouse has filed for divorce, including the list of relief, or what they are requesting in the divorce (property division, custody, alimony, etc.), but no complaint is attached.
A Summons and Verified Complaint, on the other hand, will elaborate on all allegations in numbered paragraphs. If no complaint accompanies the summons, Domestic Relations Law § 232 requires the summons to read “Action for a Divorce” and specifies the ancillary relief sought by the plaintiff (spouse who filed).
What Steps Should I Take After Being Served Divorce Papers?
After being served divorce papers, it is required that you respond to the court within a certain period of time. You may have to serve your spouse with a copy of your response as well.
In accordance with CPLR 320(a), you will have 20 days to appear if you were personally handed divorce papers while in New York State, and 30 days if you were served in any other way, including while you were outside of New York State, or service was substituted.
Failure will lead the New York court to assume that you do not contest the divorce and that you agree to all of the terms written in the summons. Ultimately, this will grant your spouse the divorce, and everything else that they requested in the settlement, by default.
Further, it is necessary that you know your options when it comes to divorce proceedings. For example, you and your spouse can decide to call off your divorce, take it to court, or settle an agreement through different types of dispute resolutions, such as mediation, collaboration, or arbitration. To help you navigate what avenue is in your best interest, consult with a knowledgeable Long Island divorce lawyer today.
What You File Depends on Which Papers You Received
New York has no singular “response to divorce papers” form, so identifying which document you have been served with is critical, as ultimately this will determine how you file your response:
- Summons with Notice: You will serve your spouse with a notice of appearance and written demand for the complaint. In accordance with CPLR 3012(b), your spouse will then have 20 days to serve this complaint, and your time to appear will increase an additional 20 days after receiving it.
- Summons and Verified Complaint: You will serve your spouse with a verified answer, ultimately admitting to or denying each allegation and raising any counter claims or applicable defenses.
- Nothing is contested: If you agree with everything in the document you are served with, you may sign and notarize an Affidavit of Defendant instead.
If the deadline to submit a response has already passed, failure to respond may result in the court entering a default judgment against you. Essentially, this means because you failed to respond, the court issues a decision without your input. However, you may still have options. CPLR 5015(a)(1) allows the court to vacate a default on a motion made within one year of service if you can provide a reasonable excuse or valid defense.
What the Automatic Orders Are, and Why They Already Bind You
It’s important to understand that automatic orders are a standing court order that take effect during every matrimonial action in New York. As such, neither spouse will apply for them, nor will a judge sign them into law. In accordance with New York Domestic Relations Law § 236 (B)(2)(b), your spouse had to serve a copy of the automatic orders in addition with the summons. As such, those orders become legally binding from the moment you are served, regardless of whether or not you have obtained legal representation or an attorney.
As such, these orders bar a spouse from taking any of the following actions without the written consent of the other, or a legally binding court order:
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- Sell, transfer, conceal, or dispose of assets: This includes real estate, cash, stocks, bank accounts, vehicles, and other assets, held individually or separately. However, standard spending is still permitted, including routine household expenses or paying your attorney
- Transfer, withdraw, or dispose of assets in a retirement account: This includes IRA, 401(k), profit-sharing plan, Keogh, or any other pension or retirement account, or apply for retirement or annuity payments. A spouse already in pay status may keep receiving them.
- Accumulating unreasonable debt: This includes borrowing against joint credit cards, cards secured by the family home, or other unreasonable spending.
- Remove a spouse or children from existing insurance: Both spouses must keep their insurance coverage active, and are prohibited from removing a spouse or child as a dependent while the divorce is pending.
- Change beneficiaries on current life insurance policies: Both spouses must also continue to maintain existing life insurance coverage, and leave beneficiaries in place until the divorce is finalized.
- Fail to notify: The other party, within ten days, must be notified of a tax lien, foreclosure, bankruptcy, or litigation that could adversely affect the marital estate.
The orders remain in effect until the judgment of divorce is entered or the action ends, and the notice served on you states on its face that failing to obey them may be deemed a contempt of court. If you have already moved money, emptied an account, or changed a policy since being served, tell your attorney now rather than letting it surface in discovery.
CONTACT OUR EXPERIENCED NEW YORK FIRM
Going through a divorce can be an incredibly overwhelming and complicated matter, which is why working with an experienced attorney is in your best interest. At Barrows Levy PLLC, our firm is committed to helping you fight for the best possible outcome for your unique circumstances. When you need assistance, do not hesitate to contact our firm today to learn how we can assist you during these difficult times.
