You Were Served With Divorce Papers in New York. Now What?

The call usually comes within a day or two. Someone was handed a summons at the front door or in the parking lot at work, and they have barely slept since. They want to know if they are about to lose the house. They want to know if their spouse now has the upper hand for getting to the courthouse first. Some have already been told by a brother-in-law or a coworker exactly how bad it is going to be.

What I tell them is that this is the start of a case. It may feel like World War III, but it is only the start. Nothing has been decided. No judge has looked at your finances or your parenting. The papers in your hand say that your spouse wants a divorce and, in general terms, what your spouse is asking for. That is all they say.

Does my spouse have an advantage because they filed first?

No. In a divorce one spouse is called the plaintiff and the other the defendant, and people read a lot into those words. The person who started the case is not ahead of you. Every issue is on the table for both of you: custody and parenting time if you have children, child support, maintenance, and equitable distribution of the property and debts. You get to make your own claims with your divorce lawyer and ask for your own relief, and the court does not favor the spouse who filed.

What do I have to do, and how fast?

This is the part that cannot wait. Look at what you were served with. In New York it is usually one of two things.

If it is a summons with notice, there is no complaint yet. We respond with a Notice of Appearance and Demand for Complaint, and it has to be done on time. Generally that means twenty days if the papers were handed to you personally in New York, and thirty days if you were served some other way. When you call, I am going to ask what day you received the papers and how, because I want to count the days myself.

If you were served with a summons and complaint, or once the complaint arrives after our demand, we typically serve an answer and counterclaim. The counterclaim is how you ask for a divorce and for relief in your own right, rather than only responding to what your spouse wants.

The mistake I worry about most is doing nothing. Putting the papers in a drawer does not slow the case down. It risks a default (while the court will usually not consider a default until at least 60 days, is is best to appear in the case on a timely basis), which means the case can go forward without your side being heard.  It is sometimes possible to have a court vacate a default, there is a preference in the courts to decide matrimonial cases on the merits, although it is not ideal as courts have discretion whether to allow that or not.

The second thing to know is that the summons came with a notice of automatic orders. Once you are served, they apply to you. In plain terms, do not move or hide money, do not sell or transfer property, do not drain a retirement account, do not change the beneficiaries or cancel anyone’s health or life insurance, and do not run up unreasonable debt. Paying your ordinary bills and living expenses is fine. If you are not sure whether something is allowed, ask me before you do it.

Can we still settle this without a court fight?

Yes, and I usually start trying right away. Being served does not mean negotiations are over. Often it means they have not started yet. Once I am retained, I can contact your spouse’s attorney, find out what they are really looking for, and see whether there is room to work things out before anyone sets foot in a courtroom.

Most divorce cases settle. The real question is when. Some settle after a little back and forth and a four-way meeting with both spouses and both lawyers in the room. Some settle after a little litigation, and some after a lot of it. Some go to the brink of trial and settle in the hallway. The rare few go all the way to trial. A good part of my job is helping you settle at the earliest point where the terms are actually fair to you, and not a day before that.

What if something cannot wait?

Sometimes it can’t. The support has stopped, or nobody can agree on where the children will be this week, or one spouse controls all the money and the other cannot pay a lawyer. For those situations there are pendente lite remedies, which is the Latin way of saying relief while the case is pending. The court can order temporary child support and maintenance, set a temporary parenting schedule, direct who pays the carrying costs on the house, and award interim counsel fees. Asking for that relief does not end settlement talks. In some cases it is what gets them moving.

What happens when you call

We sit down, in person or by Zoom, and go through the papers together. I will ask about your family, your finances, and what you are most worried about. I will explain your rights and what the law is likely to consider on each issue. Then we plan together, calmly, including whether we open with a phone call to the other attorney or with a motion. You should walk out knowing what happens next and when.

I have been an attorney for over 25 years and handling divorces on Long Island for over twenty years, in the Supreme Courts of Nassau, Suffolk, Queens Counties and other New York City and surrounding counties.  I work as a litigator, a negotiator and when couples start with me together, at times a mediator. If you have been served, have your papers and call us for a free initial consultation, up to a half hour. The deadline is real, so call soon, but there is no reason to panic.