There are two main divorce types — contested and uncontested. The first refers to one or both parties disagreeing on some or all of the issues presented in the divorce papers. The latter, also known as mutual divorce, revolves around the spouses agreeing upon the issues outlined in the divorce.
In the case of an uncontested divorce, there is no need for a trial or the presence of a judge — the lawyers of each party convene and discuss the divorce matters. In essence, an uncontested divorce is much less expensive and can conclude faster than a contested one.
Below, we elaborate on how serving the defendant in the latter case works.
How to Serve the Defendant the Papers
Once you and your soon-to-be ex-spouse settle for an uncontested divorce, you can proceed with putting together the documents needed for the legal process. The best way to do it is to have a legal representative at your side since you’re most likely to get lost in all the legal terms and requirements.
File the Papers
After you’ve compiled the papers, the next step is to file them. You can do it in person or online at the County Clerk’s office. The person who files the document is known as the plaintiff, whereas the person who is served the papers is the defendant.
If you don’t have legal representation, you can file for divorce online through the NYSCEF (New York State Courts Electronic Filing). In this situation, you need to meet the following requirements to be eligible for divorce:
- You’re filing for an uncontested divorce;
- Your marriage ended at least 6 months prior to application;
- You don’t have children younger than 21
Service of Process
As the plaintiff, you have to make sure you serve the papers within 120 days of filing. The defendant must be served in person, but you don’t have to be the one that does it. Anyone above 18 years old that is not involved in the case can serve the papers to the defendant.
If the defendant is a NY resident, the process server must also be a resident of New York. In the case the defendant resides outside of NY, the process server must be eligible for the service in the state in question. Most importantly, the process server must file an Affidavit of Service.
Defendant’s Response and Calendaring
After serving, the defendant has 20 days up to a month to respond. If the defendant signs the affidavit, they agree to the terms, and the matter can further proceed to calendaring, i.e. scheduling the summons.
In the case of an uncontested divorce, the judgment can be signed and mailed or retrieved consequently. Depending on which county imposed the judgment, you might be required to file it at the office of the County Clerk. Lastly, you’ll need to serve the defendant a copy of the judgment.
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