How to contest a divorce

If you have been served with divorce papers but you do not want a divorce, or you do not agree with the terms, you can “contest” the divorce.

What does it mean to “contest” a divorce?

If your spouse wants to get a divorce but you do not, or if you do not agree with what your spouse has written in the divorce papers, you have to “contest” the divorce. To contest a divorce means you defend against it, i.e., say no to the divorce or to its terms. You may not want to get divorced or you may disagree with your spouse on certain divorce-related issues, for example, how property and money will be split up, debt allocation, spousal maintenance (alimony), or who will get custody of your children.

What do I do to contest a divorce in New York State?

You may have already been “served with” (received) divorce papers from your spouse or spouse’s attorney, which means your spouse already started the divorce process by filing with the courts. If you want to contest the divorce, now you must file your own papers with the New York Supreme Court (in the county where the summons you received was filed) and deliver them to your spouse or spouse’s attorney. This is called responding or answering. It would be best to speak to a lawyer at this point to get advice before responding or answering.

Important: If you want to contest the divorce, it is very important to respond in a timely manner. You have 20 days from the day you were served with divorce papers in New York State to respond (30 days if you were served with papers outside of New York State). If you do not respond to contest the divorce in that timeframe, you are considered to be “in default”, and the divorce can be approved without your agreement.

In addition, when you are served with divorce papers, you should not sign the “Affidavit of Defendant” if you want to contest the divorce. That is what you would sign if you wanted to agree to the divorce and its terms.

What forms do I file with the court?

The forms you have to file in order to contest the divorce depend on the divorce papers you were given. Look at the top-right corner of the papers. It will say either “Summons with Notice” or “Summons and Verified Complaint.”

What to do if you received a “Summons With Notice”:

If you were served with a Summons With Notice, then you must file a written response called a “Notice of Appearance and Demand for Complaint.” Essentially, you are telling your spouse’s lawyer that you will want to request your own relief in this divorce action and that you want to see the Verified Complaint.

1. You can download the Notice of Appearance form from the NYCourts website.
2. Make two copies of the “Notice of Appearance and Demand for Compliant” that you have filled out.
3. Go to the courthouse (or county clerk’s office) to file your forms. Hand the original and both copies to the clerk. Ask the clerk to file the original form and then to stamp the two non-original copies and give them back to you. One copy is for you and one copy is for your spouse.
4. Also, ask the court clerk for a blank “Affidavit of Service.” You will need this later (or you can get this form online).
5. Ask someone who is over 18 years old, not involved in your divorce action (i.e., who is not your spouse or child under age 21), and who is a New York state resident to serve the “Notice of Appearance and Demand for Complaint” to your spouse or spouse’s lawyer. 
6. Have this person who serves the Notice of Appearance and Demand for Complaint fill out the “Affidavit of Service.” It must be signed in front of a notary and returned to you. This is proof that the other party was served. 
7. Make two copies of the Affidavit of Service.
8. Go back to the courthouse to file the Affidavit of Service. Ask the court clerk to file the original and stamp the copies. Keep the stamped copies for your records to show proof that you have filed the papers.

Your spouse’s lawyer should then send you a Verified Complaint within 20 days of receiving your papers. Once you receive the Verified Complaint, you must then file a “Verified Answer.” 

You have 20 days to file an “Answer.”

Answers are difficult to write, and it is best to have a lawyer write an “Answer” for you. Depending on if a request for judicial intervention has already been filed and an index number has been purchased and assigned to your case, you may be able to electronically file documents in your case. If you are not sure, the court clerk can tell you if there is an index number for your case.

What to do if you received a “Summons and Verified Complaint”:

If you were served with a Summons and Verified Complaint, you have 20 days in which to answer. If you do not answer within this time frame, the judge can issue a judgment of divorce without your voice being heard.  

Remember, writing an “Answer” is difficult. It has to lay out what relief (outcome) you want the court to give you, sometimes referred to as a counter-claim. It is best to consult with a lawyer to make sure you have properly filled out the papers and timely delivered them to your spouse. If you cannot get legal advice, you may be able to get information from the court clerk.