Joan was a mess: tears streamed down her face carrying trails of mascara with them. Her hair was matted in the back and she clenched a bag of papers. “I can’t tell you where we are at here if you won’t hand me what you received,” I reminded her. Reluctantly she showed me the Summons.
“He’s divorcing me!” Joan bawled. “How dare he give me these papers at dinner – it was supposed to be a talk about our future!” Poor Joan had a right to be angry. But there was one, small technical problem: “That wasn’t a valid way to start the divorce,” I told her. Why did I say that? After the jump:
Myth #1 – I Can Hand My Spouse “The Papers”
In any divorce case, something must be filed with the Court to start the action – otherwise, how would a court know that a divorce is happening? In New York, one must file a Summons for Divorce and purchase an index number.
The next step is vital. The person-to-person delivery of a divorce summons is required under New York law. Not only is your spouse on notice that the divorce is really happening, but the process confers jurisdiction (power or authority) over both parties so that the court may hear the case.
Joan was personally served, but by her husband. Parties to an action cannot serve each other. This is a measure to prevent fraud.
Myth #2 – We Can Divorce Without Court
Fact: Sort of.
Yes, you can get a divorce without fighting in court, but just like you married and registered that marriage with the state (or country), your divorce has to be signed by a judge to be valid. So while you can work out the issues and put those into an agreement, you will still need to file for a divorce and complete the paperwork side of the case.
Sounds simple? Nope. The courts like to change up the order of papers, may find fault with your agreement, or a million other things might go wrong. Even experienced lawyers sometimes have to work hard to get the court to sign your papers without having any court hearings.
Myth #3 – Ignoring The Divorce Makes It Go Away
Fact: Absolutely Not!
In New York if you fail to answer the divorce summons, eventually your spouse can get a divorce without your participation. This type of divorce is called a “default” divorce.
If you don’t have any kids or property, then a default divorce can be acceptable. But if you do have kids or stuff to work out, hearings will be held for the judge to decide those issues – and guess what? If you don’t show up, the judge will decide the issues largely in your spouse’s favor!
For this reason, once you receive a divorce summons you need to contact a lawyer ASAP!
Questions? Drop a comment or feel free to email me!