Divorce in NY

What is the name of your state? New York State


I am writing on behalf of my sister, who called me crying today. She and her husband have been separated for one year and 2 months. Her husband called her today claiming that he divorced her and that they've been divorced for four months now. She was never served with any papers or signed any documents stating that she was consenting to a divorce. They have been married for 7 years and have a seven year old daughter. He never brought up the subject before. He just laid it on her today.

My question is this? Can he have divorced her without her consent/knowledge and signature? How can she take legal action against him, if he indeed do this without her knowledge? Please advise and thank you for your time with this bizarre situation.

zlo said:

What is the name of your state? New York State


I am writing on behalf of my sister, who called me crying today. She and her husband have been separated for one year and 2 months. Her husband called her today claiming that he divorced her and that they've been divorced for four months now. She was never served with any papers or signed any documents stating that she was consenting to a divorce. They have been married for 7 years and have a seven year old daughter. He never brought up the subject before. He just laid it on her today.

My question is this? Can he have divorced her without her consent/knowledge and signature? How can she take legal action against him, if he indeed do this without her knowledge? Please advise and thank you for your time with this bizarre situation.

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She needs to demand that he produce the paperwork proving that they are divorced. The only way he could have done it would be to have done it fraudulently. (assuming that he knew where she was to serve her with the paperwork). He doesn't need her signature to get divorced, but he DOES have to serve her with the suit.

It would probably be a VERY good idea for her to get a consult with an attorney. If somehow he pulled it off...then there are issues with the child that need to be addressed VERY quickly.

You say they have been separated for over 1 year, did they have a written separation agreement? If so, she would not have had to be served, the written separation agreement would have been in lieu of service for the simpliified divorce allowed under NY law.
"Living separate and apart for 1 year under the terms of a separation agreement which is in writing and signed and notarized [proof of compliance with the terms of the settlement agreement must be submitted when the divorce is filed. In addition, a copy of the agreement or a brief memorandum of the agreement must be filed in the office of the clerk of the county] or (2) living separate and apart for 1 year under the terms of a judicial separation decree. [Consolidated Laws of New York Annotated; Domestic Relations Law, Article 10, Section 170 and Article 13, Section 230]."
"SIMPLIFIED OR SPECIAL DIVORCE PROCEDURES: A summary divorce may be granted in New York if: (1) the spouses lived apart for 1 year according to the terms of a separation decree or a separation agreement and (2) satisfactory proof is submitted to the court that the spouse seeking the divorce has substantially performed all the terms and conditions of the separation decree or separation agreement. There are sample divorce forms contained in the statute (Forms 1 and 12 for no-fault grounds), including the language necessary to state specific grounds and residency requirements. In addition, New York requires a financial disclosure to be filed in every divorce action. [Consolidated Laws of New York Annotated; Domestic Relations Law, Article 10, Section 170 and Article 13, Section 236]."

There may still be fraud here and your sister should seek legal advice from an attorney Monday re property settlement and child suport.
Divorce Source: State Divorce Laws: New York ... either spouse is still a resident; (2) they once resided in New York and either spouse is still a resident; or (3) the grounds for divorce arose in New York. ...
http://www.divorcesource.com/info/divorcelaws/newyork.shtml

There was no legal separation. He just moved out. When she asked him for a copy of the divorce, he said, he paid for it, so he isn't giving her anything. If he wanted to serve her, he knew exactly where she was, as he comes to visit his daughter every Saturday. He either commited fraud or is bluffing. Either way, I have advised her to retain counsel and get to the bottom of this.