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If a petitioner fails to serve papers on a respondent and an order is entered by default isn't that illegal/considered perjury?

Ridgewood, NY |

My son's father filed a petition for a downward modification of child support. I knew nothing of the petition or hearing since I was never served court papers. I received papers in the mail today from the courts indicating that the modification was granted by default. Now, my question is two part. What do I do in family court to get this order vacated and do I just say I was never served? The second part of my question is, isn't this considered (perjury) punishable by law? I am really upset right now because I am disabled and may be unable to maintain a home for my son due to the drastic reduction in income. What to do......?

Attorney Answers 2


Start by looking in the court file for the affidavit of service to see how he claims service was made. Then make a motion to vacate the default.

I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 577-9797 or via email at I was named to the Super Lawyers list as one of the top attorneys in New York for 2012. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. The above answer is for informational purposes only and not meant as legal advice.

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Thank you, but what if the affadavit is false? I never received papers,nor did anyone in my house receive service. Hasn't the person who did this accountable for their actions by law?


In order for the court to grant a default based on your failure to appear, the father would have had to file an affidavit of service indicating that you were served. Even if you were not personally served, service could have been effected on someone in your home capable of accepting service. Regardless, you have to make a motion to vacate the default. You have one year to make that motion. If you can establish that you were never served and had no notice if the proceeding, the motion will be granted and then you can participate and our forth your defense to the modification petition. File the motion immediately.

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He never served me or anyone in this house. What if the affadavit is signed and they lied? I am disabled and have not left my house since January. My son is 15 and goes to the store for me. I only go out to the doctor. If someone falsely stated in affadavit that I was served isn't that perjury and punishable by law?

Maria C. Tebano

Maria C. Tebano


Then you can still file a motion to vacate. It is up to a DA to file charged for put jury, but I can tell you, that no one will be prosecuted for signing an affidavit. File your motion to vacate ASAP.

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