Norah Hart Attorney

Is this divorce contested or uncontested? This case is neither. This divorce has not even begun. The Notice of Divorce must be served within 120 days from the date the papers were filed with the County Clerk's Office and she says he filed two years ago. The mother/wife tells me that her husband handed her the documents himself, while they were at home in their apartment and he e-mailed it to her. Her husband told her she is “in default”. The fact is, the Husband has defaulted because the wife was not served properly. A defendant (here, the wife) must be served within 120 days from the date the action was filed with the County Clerk's Office. Furthermore, the Plaintiff cannot be the person that gives the papers to the Defendant. Because her husband is a party, he cannot serve her. The fact that he e-mailed her a copy is also irrelevant, proper service must be made with hard copies handed to the defendant by an adult who is not a party to the action. Technically their divorce has not even “commenced”. The date of commencement is the date proper service takes place. The true date of commencement can become very important when it comes to dividing marital assets and/or calculating how long the higher earner will (may) be required to pay the lesser earner spousal support.

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