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lwpat
lwpat, Lawyer
Category: Family Law
Satisfied Customers: 25384
Experience:  Practicing family law attorney
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1) If I am served papers for divorce, am I obliged to appear

Resolved Question:

1) If I am served papers for divorce, am I obliged to appear in court? What will happen if I do not respond in any way - am I breaking the law? Or will the divorce simply be granted to my husband by default?

2) If the latter (I do not respond and the divorce is simply granted to my husband by default), and my husband sings affidavit to prove the divorce is on grounds of let's say cruel treatment, or abandonment - does my lack of response mean I legally admit that this is true? Can this grounds for divorce be then used as a proof in front of officials that I actually abandoned him or abused him? Or if I did not respond, it means I neither admit or deny the truthfulness of his claims?

Thank you!
Submitted: 2 years ago.
Category: Family Law
Expert:  lwpat replied 2 years ago.
Thank you for posting your question to JA/Pearl. Legal questions often take time for research or I may be offline so please be patient, I will reply.

I am sorry to hear that you and your husband are getting a divorce. You are not legally required to appear or to file an answer. However, if you do not, then he will obtain a default divorce and the court will grant his petition with regards XXXXX XXXXX division of any marital property, child custody (if there are any) and possibly for you to pay his attorney fees. Usually the best option is for the two of you to enter into a marital settlement agreement and obtain a no fault divorce. Here is more information on a divorce in NY

http://nycourts.gov/divorce/forms.shtml


See the links on the left of the page

You can give a positive rating and continue with a follow up question.

Here are the grounds for a divorce

(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.

(2) The abandonment of the plaintiff by the defendant for a period of one or more years.

(3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

(4) The commission of an act of adultery, provided that adultery for the purposes of Articles Ten, Eleven, and Eleven-A of this Chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in Subdivision Two of Section 130.00 and Subdivision Three of Section 130.20 of the penal law.

(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.

(6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) The names and addresses of each of the parties, (b) The date of marriage of the parties, (c) The date of the agreement of separation and (d) The date of this subscription and acknowledgment or proof of such agreement of separation.

(7) Irretrievable breakdown in relationship for a least six months.
Customer: replied 2 years ago.
Thanks much for your reply. I am still unclear about my second question:

If I do not respond, and he receives a divorce by default, will my lack of response mean I legally admit that the grounds on which he is divorcing me are true? Can these grounds on which the default divorce was obtained be then used as a proof in front of other officials that I actually abandoned him or was cruel to him?

Or does my lack of response mean that I neither admit nor deny the truthfulness of his claims?

This is very important for me! Thank you.
Expert:  lwpat replied 2 years ago.
If you do not appear and contest, then he can get a divorce based on (1) above. That will be the decree of the court. I have no idea what "other officials" that you could be talking about since the divorce would be the only action.
Customer: replied 2 years ago.
I am talking about immigration officials, where I swore 2 months ago that I currently live with my husband, in order to obtain US citizenship.

I did live with him, but he may still try to prove it with false proof in front of the court that I have not lived with him for 1 year or more, in order to obtain this divorce.

I do not have the money to spend to contest only the grounds. We have no marital property to divide, and I don't want alimony. All I care about is that if I do not respond to the divorce, there is no false legal proof created that I have not lived with him for 1+ year.

Do you understand now why this is so important to me?

So this is the question:

- If I do not respond to served papers, and
- he is granted a default divorce on the grounds he of abandonment for 1+ year,
- can that divorce decree be later used as a legal proof that I have not lived there for 1+ year? Or will the fact that I have not responded be reflected in the decree, and therefore it will mean that I do not legally admit to the fact I have not lived with him?

P.S. The basic fear is that my husband might try to harm me by using the divorce decree to call the immigration services and tell them I lied when I swore to them, and try to get me deported. He actually threatened me he would do that.
Expert:  lwpat replied 2 years ago.
If there is a divorce on grounds of abandonment for one year, then that could be used in an immigration proceeding. However, that is different grounds than (1).
lwpat, Lawyer
Category: Family Law
Satisfied Customers: 25384
Experience: Practicing family law attorney
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