Serving a Summons with Notice in a New York Divorce
In the state of New York, a divorce proceeding may follow the same procedures as many lawsuits. The spouse who acts as the plaintiff must provide the other spouse, acting as the defendant, with a notice of the proceeding. This notice includes both a summons and either a description of the lawsuit or a copy of the original divorce complaint. These documents are delivered to the defendant through service of process. When this procedure isn’t done properly, cases can be delayed or even dismissed. After the defendant has been served the papers, they are legally required to file an answer. If they do not file an answer, they may receive a default judgment regarding most of or all of the plaintiff’s complaints. When one spouse serves the other with notice, and the defendant spouse defaults rather than answering the summons, does that spouse have a right to see the actual complaint? There is very little case law on this topic, but the small amount on the books suggests that notice that does not include the initial complaint will be sufficient for divorce proceedings, but cannot determine factors such as spousal support or child custody.
According to New York state law, a summons must be filed by the plaintiff along with a notice that describes the complaint or the complaint itself. If a plaintiff chooses to use a notice rather than the complaint, they must later file the actual complaint. Deadlines for complaint filing depend on the defendant’s response to the lawsuit.
Service of process in the state is governed by both the Civil Practice Law & Rules and New York Domestic Relations Law. According to Section 232(a) of the DRL, a summons must clearly state that it regards an “action for divorce.” According to Rule 320 of the CPLR, a defendant who was personally served has twenty days to respond, and a defendant served by other means has thirty days to respond. If the defendant chooses not to give a response to the court clerk, the plaintiff can move to have a default judgment made.
This is where the law starts to get murky regarding summons that were given with notice. When a plaintiff serves the defendant with a summons that uses notice rather than a complaint, they are required to officially file their complaint within twenty days of:
- The date of the receipt of a demand written by the defendant, or
- Official service regarding the defendant’s response to the notice
In both scenarios, it’s assumed that the defendant will file some kind of official response with the court. But the law does not answer the question of when a complaint must be filed if the defendant defaults on the summons rather than answering the notice. In addition, a default judgment may be allowed during a divorce proceeding if the defendant was served a summons with a notice rather than a complaint.
The Monroe County Supreme Court made a decision in 1971 during the case Goulet v. Goulet, which can be used for guidance. However, the decision also raises more questions. In this case, the defendant was served a summons with notice. The court then granted the plaintiff a default judgment because the defendant did not file an answer. Such a ruling suggests that it’s not required to serve the defendant with the actual complaint. But the court would not give a default judgment regarding child support, spousal maintenance, and child custody.
The summons and notice only stated that this was an action for divorce. Therefore, the court ruled that the defendant had not been given comprehensive notice of other issues at play. The ruling did not further address how the plaintiff should rectify the issue, but a reasonable solution would be to serve the defendant with the actual complaint rather than notice.
In other words, a couple can be divorced if a plaintiff spouse serves a defendant spouse a summons with notice rather than the actual complaint, even if the defendant spouse does not file a response to the summons. This is considered a default action on the divorce of the couple. However, a summons with notice only is not enough to determine other issues such as child support, child custody, and spousal maintenance.
If a plaintiff’s marriage will involve potentially complex litigation factors such as children, complicated marital assets, or the need for spousal maintenance, it’s a better idea to serve the defendant spouse a summons with the complaint rather than a summons with notice. To do that, the plaintiff spouse would need to file their divorce complaint before they issue the summons for their spouse.
Regardless of whether the summons is sent with the complaint or with notice, the defendant is required to respond within twenty days. If the defendant fails to respond, the issue of divorce will be subject to a default court ruling.
When a plaintiff sends a summons with notice, and the defendant fails to respond, the divorce will receive a default court ruling. More complicated legal issues, though, will not be decided by default because a summons with notice does not give adequate information regarding the issues at play. After the defendant defaults on the divorce proceeding, the plaintiff can then send them a summons with the actual complaint. If the defendant once again files no answer with the court in the required period of time, then the court will default on the more complex issued outlined in the complaint.
We are lawyers in New York who specialize in divorce proceedings and litigation. If you have questions about the serving of a summons with notice or complaint, contact us for information about your case. All cases will be slightly different, so it helps to have a legal opinion regarding your unique circumstances.