Every now and again we will commence a divorce for a client on Long Island only to find that his or her spouse is unwilling to cooperate in the proceeding. A divorce in and of itself is stressful enough, but when an uncooperative spouse is added to the mix, most clients feel an immense amount of concern and stress. Clients will often ask me in a panic if this means they will need to remain married for the rest of their lives. Luckily, the law provides an option for clients who find themselves in exactly this situation. If your spouse refuses to appear in your divorce action, you may still obtain a divorce through what is know as a Default Judgment.
A Default Judgment is final judgment in favor of the Plaintiff who commenced the action, resulting from the Defendant’s failure to appear in a proceeding. The Defendant appears through either an Answer to the Summons and Complaint, filing a motion to extend the time to answer the Summons, or by filing a Notice of Appearance. According to New York Statutory Law, the Defendant is required to answer the Summons and Complaint within 20 days of personal service. Additionally, the Plaintiff is required to file an Affidavit of Service with the court as proof that the Summons was personally served upon the Defendant.
For many clients on Long Island, time is of the essence. A divorce is not something they want to drag out or prolong. In this regard, the Default Judgment is a “quick” option. A Default Judgment will not remain on the court’s calendar for long, as there is only one party and you will certainly not be arguing against yourself. This also helps you avoid litigation costs that might otherwise have been spent litigating the issues of your divorce. If you arrive at the Preliminary Conference with the Court, which is your first appearance before the Judge, and your spouse has not appeared as set forth above, it is very likely that the court will set your matter down for an Inquest. An Inquest is a one-sided divorce proceeding in which your attorney will ask you all the questions required for you to be granted what you are asking for in your divorce. After the conclusion of the Inquest, you need only wait for your Final Judgment of Divorce in the mail.
Another benefit to a Default Judgment is that no financial disclosure is required. Typically, during a divorce in which the Defendant has appeared, the parties must exchange tax returns, bank account statements, pay stubs and other relevant financial documents. If your spouse refuses to appear, there is no one with whom to exchange such documents. Thus, if seeking a Default Judgment, no financial disclosure is necessary.
In many cases, a spouse will fail to appear until they are served with the Notice of Inquest. Typically, the non-appearing spouse will then run to court and state they were never served with the Summons and Complaint, or any other documents relating to the divorce, and therefore did not know the action was pending. This may cause your Inquest to be adjourned, or even dismissed, in which case your divorce action would proceed normally (as if your spouse had appeared).
Most importantly, your spouse may move to vacate the Default Judgment up to one year after the Final Judgment is entered. This means that if your spouse has a reasonable excuse as to his or her default, your Final Judgment of Divorce may be modified at any point within the one-year period.
If you find yourself in a situation in which your spouse is not cooperating in your efforts to get divorced, it is important that you have an experienced attorney by your side during your Inquest. If you believe this situation may arise within your divorce, contact our Long Island Divorce and Family Law Firm at 631-923-1910 to schedule a complimentary consultation with our experienced Long Island Divorce and Family Law attorneys.
For more information about Divorce on Long Island, visit this page: Divorce Lawyers Answer Questions about Long Island Divorce
