Asked 7 months ago - East Meadow, NYFlag
Are both spouses required to sign first and then the papers are submitted to the court or is one spouse compulsorily required to petition and route the papers via court before they are served on the other spouse? Also if a husband files for an uncontested divorce, and the papers are served on the wife, can the wife immediately hire a lawyer and contest the divorce? What happens if the husband is not required to serve the papers on the wife and tells her he has filed for divorce? How can the wife confirm its authenticity?
One party (Plaintiff) prepares the initial papers (Summons with Notice or Summons and Complaint), purchases an index number and files the papers. Once the papers are filed the Plaintiff has 120 days to have them served on the Defendant. In a divorce action the Defendant must be personally served. Service must be made by someone other than the Plaintiff who is over 18 years of age. If the parties can agree on everything then it can proceed as an uncontested divorce.
One spouse is required to file the Summons and Complaint for Divorce and serve those filed documents on the other spouse...whether the divorce is alleged to be contested or uncontested the process is the same. And yes, even if you file an "uncontested" divorce, your wife can contest the divorce however with the new No-Fault divorce in NY proving the grounds is relatively easy. You should consult a local attorney to help you.
There are a few different ways to proceed depending on whether the parties already have a signed agreement in place, whether there are contested isssues such as custody/support and property division. Typically one spouse files for divorce and has the other one served. Your best investment is in a consultation with an attorney to get all the information and then decide how to proceed from there.
Often parties can come to an agreement first, thus making the divorce uncontested, but the spouse must always be served with the summons, whether it is contested or uncontested and if there is no agreement, the served spouse has either 20 or 30 days to file a response to the summons. You should speak to an attorney to know what your rights are.
You have to be served with summons with notice or summons and complaint. A judge will not sign the divorce findings of fact and decree unless s/he is satisfied that other party has been served within 120 days of obtaining the index number and that an affidavit of service is filed with the clerk's office w/n that time frame. Even if the matter is considered "uncontested", the other party has to sign an agreement or at the very least a defendant's affidavit. So, you would know that a divorce was filed if you were served and you had to sign papers. The other party can always absolutely contest a divorce. They are not required to proceed uncontested. Many of my clients tell me unequivocally it's an uncontested divorce and it turns out not to be the case. You could always go to the county clerk's office and ask if any divorce papers were filed. Bear in mind, that if your husband lives in a different county, you need to ask that county clerk's office.
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