New York: ‘What if spouse refuses to sign?’

First in a recurring series of New York-specific questions and answers

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Q: What happens if my spouse won’t agree to sign the papers?

A: The short answer is that your spouse will lose by virtue of a default judgment.

However, that being said, you must have met all requirements and have all paperwork in order such that your local Supreme Court judge can clearly see that all Ts have been crossed and all the Is dotted. Remember, we at this blog can not offer legal advice (and neither can anyone in the clerks’ or courts’ offices), so your best route is to retain an experienced, trained attorney who is familiar with both the latest state law and with the local rules of your county’s Supreme Court. New York Family Courts can help with many domestic matters, but a decrees of divorce are handled by the NY Supreme Court system.

First, the residency requirements

The longer answer is that, first, the residency requirements must be met:

1. You or your spouse must have been living in New York State for a continuous period of at
   least two years immediately before the date you start your divorce action; OR
2. You or your spouse must have been living in New York State on the date you start your
   divorce action and for a continuous period of at least one year immediately before the
   date you start the divorce action, and at least one of the following must also be true:

   • Your marriage ceremony was performed in New York State; OR
   • You lived in New York State with your spouse as married persons; OR

3. You or your spouse must have been living in New York State for a continuous period of at
   least one year immediately before the date you start your divorce action and your grounds
   for divorce must have happened in New York State. (“Grounds” means a legal reason for
   the divorce); OR
4. You and your spouse must be residents of New York State (no matter how long) on the
   date you start your divorce action, and your grounds for divorce must have happened in
   New York State. (“Grounds” means a legal reason for the divorce).

Initiating divorce proceedings

According to the New York State Unified Court System Divorce FAQ, the process begins thusly:

You will need to buy an Index Number at the County Clerk’s Office and file a Summons with Notice or a Summons and Verified Complaint (which has the reasons for the divorce). Next, you will need to have another person over the age of 18 who is not a party to the action serve your spouse with the papers. For more information on filing fees, completing and serving papers, placing your case on the court’s calendar, and other procedures, please carefully follow the Uncontested Divorce Forms Packet Instructions.

No response from spouse

Once properly served, the spouse has a certain, specified time period in which to respond with a legal answer, either by Notice of Appearance or Verified Answer. If that response is not made, the spouse is said to be in default, and you can request a hearing. Judges do not look kindly on people who ignore court orders, so unless your case is highly unusual your chances for being awarded judgment by default are very good. In the unlikely event that the recalcitrant spouse moves quickly enough and files a legal motion to vacate the judgment, it’s possible the case can be reopened.  If that happens, it’s possible that the judgment is vacated (set aside), in which case, everybody starts over. However, the window of opportunity to make such a motion is limited.

Spouse can’t be located

A related question is “What if I can’t locate my spouse?” From the court’s perspective, this is equivalent to: the spouse can not be properly served. That doesn’t mean the case stalls, however. The court’s answer is this:

New York state law requires that the defendant in a divorce action be personally served with the Summons with Notice or Summons and Verified Complaint. To have your spouse served in any other way, you must get permission from the court. You can apply for such permission by filing an application for alternate service with the Supreme Court Clerk’s Office in the county where you filed your divorce case.

For example, the court may allow service to be notice in a certain newspaper. Whatever it is, once the alternate service is carried out, the case proceeds apace: Either the spouse responds legally or he/she will be in default.

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