If you receive a divorce summons, you may wonder if, when, and how you should respond to it. The summons is an important legal notice that begins a divorce case in New York state.
How a Divorce Case is Commenced in New York
There is a very specific process a divorce filing must follow in New York. First, the plaintiff’s attorney must purchase an index number for the case. They must then complete one of two forms:
- Summons with Notice
- Summons with Verified Complaint
Only one of these forms is required. The Summons with Notice simply indicates a divorce case is being commenced. The Summons with Verified Complaint provides details about the grounds for the divorce and the relief the plaintiff is seeking in the divorce. Often the Summons with Notice is used when strategies and plans are still being decided upon. It opens the case but provides time for the plaintiff to later file the Verified Complaint with the details about what they are requesting.
Service of Summons
Once an index number has been obtained and a Summons completed, the Summons must be served to the defendant.
There are several ways in which you can be served with the papers:
- Agreement: You agree to accept the papers and complete an Affidavit of Defendant that you accepted them.
- Personal service: Someone over the age of 18 who is a New York state resident and is not a party to the action can personally hand you the papers.
- Substituted service: The documents can be handed to someone over the age of 18 at your home or place of work and also mailed to your home address or place of business.
- Nail and mail: If service cannot be made to you using the above methods, the paperwork can be affixed to the door of your home or office and mailed to you at your home or business.
- Publication. If all other methods fail, the court can authorize service by publishing a legal notice in a designated newspaper of record or by any other method the court deems appropriate.
Service must occur within 120 days of the date the summons are filed with the county clerk.
Should You Accept Service?
People sometimes wonder if they should accept the service of divorce papers or if they should make it challenging for them to be actually served. If you avoid the process server who is seeking to serve you in person, you can buy some time. They will attempt to serve you several times before moving on to another method. If they cannot access your home or place of business to give the papers to someone there or access the actual door of the home or business, it will further delay things and will add the expense to the Plaintiff’s legal bill.
Eventually, however, the court will require you to accept some form of service. If you wish to delay things, you can make it challenging to be served, but ultimately you will have to accept service, and the case will move forward.
Responding to a Summons
A legal summons should never be ignored. Ignoring a Summons can result in a default judgment being entered against you and a significant loss of your rights concerning divorce or any legal action.
You have 21 days to respond to a divorce Summons 31 days if you were served while outside of New York state). That may not seem like a lot of time, but the initial response does not require details. Your attorney will file a Notice of Appearance in response to the Summons. This response simply indicates you are appearing in the divorce and are not surrendering your rights.
You should not attempt to respond to the Summons yourself. You should retain an attorney experienced in divorce law who can correctly file the correct document to be certain that it meets the requirements set by the court and the statute.
You may need time to find the right attorney to represent you in your case. If you cannot make a final selection in that time period, any attorney can be retained and file the document. If you wish to change to another attorney later, you can do so with court approval.
Moving Forward with the Case
Once the Summons and Notice of Appearance have been filed in the case, the real work begins, and both sides begin negotiating and preparing for trial. It will take months and possibly more than a year for the case to reach its resolution.
Receiving a Summons for a divorce case can be shocking if you did not know your spouse planned to end your marriage. It is important to get the Summons to your attorney as soon as possible to get the legal advice you need.