I filed a summons and verified complaint April 2012 and did not serve these papers to my ex until February 2013. I requested a divorce my default and was granted it recently because my ex did not contest the papers. She has now told me that she plans on requesting the judge to vacate the default divorce because I was supposed to serve the summons and verified complaint within 120 days of filing it. Could a judge grant her petition to vacate the divorce?
It is possible that a judge may vacate the judgment by default. If she does make the motion, I suggest that you immediately consult with an experienced divorce attorney near you.
The judge should vacate the default judgment for failure serve within 120 days. Consult with an attorney as soon as possible to help you.
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Generally one has 120 from the filing date to serve the summons & complaint. It's that's her only basis for moving to vacate, however, she'll likely lose. Generally one needs a "reasonable excuse" for one's default as well as a meritorious defense. Serving the papers late does not support either one of those items. In any event, I suggest that you schedule a follow-up consultation with a Westchester Divorce attorney for a full assessment.
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Family Law Attorney
You have 120 days from the commencement of the divorce action during which to serve your spouse. If your spouse makes a motion to vacate, you should also file a motion to have the service considered acceptable ("nunc pro tunc"). Good luck.
Criminal Defense Attorney
You have 120 days to serve a Summons and Complaint after it is filed with the County Clerk's office. You may extend that time by requesting an extension. If you fail to extend, your action/default may be subject to dismissal by the Court. However, as the last attorney pointed out, your wife failed to answer in a timely fashion and she must show good cause for her failure in order to overturn your failure to timely serve. However, it has been my experience that most Courts disfavor defaults and want both parties before them to finalize a Divorce, so they are often lenient in granting vacatur of a Default taken in the fashion you claim occurred. I suggest you hire an experienced matrimonial attorney and go over the case carefully and consider settling with her nonetheless so the issue of default and lack of timeliness disappears completely.
You may call our office at 516-248-6600 or send an email to us at Ted@Thelawteam.com. This answer does not form an attorney/client relationship with anyone and any answers do not constitute direct legal advice and should not be followed unless and until you have spoken with an attorney of your choice.