STEP 3.Put the index number and the date of the filing on the two copies of the Summons With Notice (or the Summons and Verified Complaint) if this is not done by a clerk upon filing the papers.
STEP 4.Where the Defendant agrees to the divorce, he or she will need to sign the Affidavit of Defendant (Form UD-7). This may be done by submitting the form to the Defendant together with the Summons With Notice or Summons and Verified Complaint and Notice of Automatic Orders and Notice of Guideline Maintenance, if the divorce was commenced on or after 1/25/16. The Plaintiff should send the form to the Defendant with a copy of the instructions on how to fill it out. The Defendant must send the completed form back to the Plaintiff prior to having the case placed on the calendar so that the form can be filed with the other forms. If the Defendant does not return the signed form to Plaintiff, follow STEP 5 below.
STEP 5. Have the Defendant served with one copy of the Summons With Notice or Summons and Verified Complaint, and the Notice of Automatic Orders, the Notice of Guideline Maintenance,, if the divorce was commenced on or after 1/25/16, and the Notice Concerning Continuation of Health Care Coverage, by being personally handed the papers. NOTE: The Maintenance Guidelines apply only to divorces commenced on or after 1/25/16, and therefore you should not serve the Notice of Guideline Maintenance with the Summons if your divorce was commenced before 1/25/16. “Maintenance” means support paid by one party to the marriage (“spouse”) for the support of the other party pursuant to a final Judgment of Divorce.
- If your spouse lives in New York State: The server must be a resident of New York State, over eighteen years of age, and cannot be a party to the action (this means you may not serve your spouse with the Summons).
- If your spouse is presently residing outside of New York State: You must still ensure that he or she is personally served with the summons. If you use a non-New York State resident to serve your spouse outside of New York State, the server must be a person authorized to make service pursuant to the laws of that jurisdiction or a duly qualified attorney in that jurisdiction, and you must submit a copy of the authorization that allows that person to serve the summons. You are encouraged to check with the local sheriff and, if necessary, with a country’s Consulate or Embassy as to any local requirements for service.
Service upon the Defendant of the Summons With Notice or Summons and Verified Complaint and Notice of Automatic Orders must be made within 120 days of their filing with the County Clerk’s Office. If you do not know where the Defendant is located, you may wish to delay filing the Summons With Notice or Summons and Verified Complaint until he or she is located, so that the 120-day period does not begin running while you search for your spouse.
IMPORTANT: The Notice of Guideline Maintenance must also be served with the Summons With Notice or Summons and Verified Complaint BUT ONLY if Your Action Was Commenced on or after January 25, 2016.
IMPORTANT: If there are children of the marriage under the age of 21, you must also serve a copy of the Child Support Standards Chart on the Defendant.
STEP 6.If you had to follow STEP 5 above because the Defendant would not agree to complete and return the Affidavit of Defendant, the person that served the Defendant must prepare an “Affidavit of Service” (Form UD-3), which attests to the service of the Summons With Notice or Summons and Verified Complaint, Notice of Automatic Orders, Notice of Guideline Maintenance if the divorce was commenced on or after 1/25/16, and any other documents served. This affidavit must be submitted along with the full set of divorce papers when you place your case on the court’s calendar. There is a 40-day waiting period from date of service to place the matter on the court’s calendar. If the Defendant does not sign Form UD-7 to waive the 40 day period, you must wait the full 40 days.
STEP 7.If the parties were married in a civil ceremony or if the Defendant signs the Affidavit of Defendant (Form UD-7), SKIP THIS STEP. If the parties were married in a religious ceremony, the Defendant must be served with a copy of the Sworn Statement of Removal of Barriers to Remarriage (Form UD-4). The Plaintiff must fill out the original and make a copy of the form. The copy then must be served on the Defendant either by personal service along with the Summons With Notice or the Summons and Verified Complaint, or by mail. If you serve the form by mail, it must be done prior to your placing your action on the court’s calendar, because you will need to file the original form with the other required forms. Service by mail must be done by someone other than the Plaintiff who is over the age of 18 and not a party to the action. When you file this form, you must attach to the form the Affidavit of Service (Form UD-4a).
If the Defendant appears and does not consent to this action:* Then your matter is no longer an uncontested matrimonial and you will be unable to obtain an uncontested divorce. You may want to consult an attorney at that point.