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Prior to the onset of the COVID-19 pandemic, a spouse was able to receive a Judgment of Divorce even if the other spouse defaulted or chose not to participate in the divorce process. Now, this option is not as certain, and, even if a default divorce Judgment is granted, there are certain situations in which the Court may later reopen the proceeding.
By way of background, when a spouse is filing for divorce, that spouse–known as the Plaintiff– has two possible avenues: an uncontested or contested divorce. An uncontested divorce is one that is commenced after the married parties have been legally separated by virtue of a written and duly signed separation agreement which resolved all economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of counsel and experts’ fees and expenses, and, if the parties have minor children, issues of custody and visitation, as well as the payment or waiver of child support. A contested divorce on the other hand, is one that is commenced prior to such issues having been resolved, either by agreement of the parties, or by decision of the Court. Bottom line is, that unless the parties have such a properly executed agreement resolving all of the marital issues, they cannot get an uncontested divorce. Unresolved issues require Court intervention and thus, the divorce action is considered contested.
Both types of divorces are commenced with the filing of a Summons and Complaint in New York State Supreme Court. Once the Summons and Compliant has been filed, the Plaintiff is then tasked with the duty of having the other spouse—known as the Defendant—personally served with the Summons and Complaint. If the Defendant is served within the State of New York, that spouse has twenty (20) days after the date of such service to answer or appear in the divorce action. If the Defendant is not served within the State of New York, that spouse has thirty (30) days to answer or appear.
If the Defendant has failed to appear in or answer the divorce action within the required time frame, the Plaintiff then has the option to seek a default judgment, based upon the Defendant’s failure to appear or answer. If the action is one for an uncontested divorce, and presuming the parties’ signed separation agreement is properly prepared and executed, the Court will grant the Judgment of Divorce to the Plaintiff’s request even though the spouse defendant failed to appear. This is called a default Judgment. However, if the action is a contested divorce, the Court will be required to schedule an appearance known as an inquest. An inquest is essentially, a one-sided trial in which the Court takes testimony and evidence presented by the Plaintiff, in order to determine the issues of equitable distribution of marital property, spousal support, counsel and experts’ fees and expenses, and, if the parties have minor children, issues of custody and visitation, as well as child support. Thereafter, the Court will consider the evidence as presented by the Plaintiff, deicide how to divided the assets or debts; how to grant custody and issues of spousal or child support as well as and grant the final Judgment of Divorce.
However, due to the COVID-19 pandemic, the procedure and ultimately the resolution of default divorce actions, has become less straight-forward. At this time, some Courts are not accepting application for default divorces and are instead adjourning these actions until such time as we are no longer in the midst of this public health crisis. Others are granting default Judgments in only uncontested divorces.
Clearly while the Courts are operative and many are choosing not to stall their lives and are still proceeding to divorce, it is not business as usual. Experienced guidance in these times is more crucial than ever. We can help you even if your divorce proceeding is already underway or a divorce judgment has been entered. We have decades of experience with divorce, equitable distribution, child custody and support, and maintenance issues, and our team of family and matrimonial law attorneys will help you navigate intricate family and matrimonial legal matters. No matter the current events, our attorneys are ready to handle your legal representation with sensitivity and care. To schedule an initial consultation, contact us 24 hours a day, 7 days a week, at (888) 529-4543 or firstname.lastname@example.org
Maria V. Morse is an Associate in Tully Rinckey PLLC’s Syracuse office, where she is a member of the Firm’s Family and Matrimonial Law practice group.