A husband brought an action to vacate a judgment of divorce taken on default against him. He also asked the divorce lawsuit be dismissed in its entirety. He claimed there was fraud involved in the lawsuit and the court did not have jurisdiction to hear the case. There was a special referee appointed to handle the case. The special referee awarded the wife 100% of all of the family’s marital assets which she could produce evidence of. The referee rendered this decision in part based on her husband’s inappropriate conduct in hiding and dissipating assets. In addition, the court took into consideration the fact the husband destroyed evidence during the course of the divorce proceeding.
Bad Service of the Summons
The husband in the case claimed he was not properly served with the Summons with Notice. He therefore argued the court did not have jurisdiction to try the case involving him. Therefore the judgment entered against him on default needed to be vacated.
Referee’s Decision Upheld By The Court
Justice Rachel Adams sitting in the Supreme Court Divorce Part in Kings County, confirmed the decision made by the referee in this case. She rejected the husband’s arguments for vacating the default judgment. She stated the husband had filed bankruptcy on the day after he was served with the summons in the divorce lawsuit. In the bankruptcy proceeding he listed the pendency of the divorce case against him for purposes of getting it stayed by the bankruptcy court. (A stay is a temporary injunction preventing a case from going forward). Justice Adams, in her decision, pointed out the husband did not challenge the jurisdiction or personal service of the divorce proceeding within the confines of the bankruptcy proceeding. He also did not challenge the application to lift the automatic stay in the Bankruptcy Court to allow the divorce proceeding to proceed in the Supreme Court in Kings County. (Bankruptcy proceedings are brought in the United States Bankruptcy Court, a federal court. Divorce proceedings are brought in state courts. In New York State, they are brought in the Supreme Court Divorce Part.)
Husband Refused to Appear
Justice Adams stated in her decision the husband voluntarily, knowingly, and intentionally did not appear in his divorce case. He therefore defaulted. In addition, he refused to cooperate with regard to producing documents necessary for the prosecution of the divorce. Justice Adams denied the husband’s motion and found that he had knowledge of the pending divorce lawsuit.
Conclusion
If you get served with a Summons with Notice or a Summons and Complaint in a divorce action, don’t ignore it. If you do, your spouse can end up with 100% of all of the assets. That is the absolute worst result you can have with regard to 
equitable distribution of assets in a divorce.
About Elliot S. Schlissel
