Can I vacate my spouse's divorce?

You can request a court to open up, vacate and relieve you from the terms of the divorce decree, which you may not have wanted in the first place. A final divorce can be vacated and nullified under certain circumstances. For example, if the you were not personally served with the Summons as mandated by the NYS Domestic Relations Law, or if your spouse engaged in fraud, such as misrepresentation or hiding marital assets, then the you, who may not have wanted the divorce in the first place, can file a motion in court requesting an Order to vacate the divorce.

You must have a very good reason to ask the court for this relief, or "excusable default". There are many reasons for vacating a divorce which could involve illness, impossibility of appearing in the case, incarceration, threats, law office failure or court errors, such as mistakes in the distribution of marital property or debt, child support or maintenance miscalculations, newly discovered evidence which would probably have produced a different result at trial but which was not discovered in time, or a child custody award that was not in the best interests of the children. Also,if the divorce was granted to your spouse on the ground of abandonment for more than one year, and you allege and can prove that you and your spouse lived together and engaged in marital relations during this year. To be successful, you must file a motion in court requesting an Order to vacate the divorce within one year from the date of the divorce.. This is known as an Order to Show Cause, in which the court would direct your spouse to show why the judgment should not be vacated. You may want to ask the court to direct that marital assets be kept in place while the motion is being considered.

The court can also vacate a default judgment if you were not properly served with a summons. This is a document telling you to come to court on a specific date,or giving you time to answer or appear in the action. The New York Domestic Relations Law mandates that the summons must be personally served by a, usually a process server. If this has not happened, but your spouse was granted the divorce nevertheless, then the divorce can be vacated due to Lack of Personal Jurisdiction. Mailing of the summons, placing it through a letterbox or affixing it to a door will not suffice as personal service.

There are advantages and disadvantages in trying to vacate a judgment on the grounds of improper service. The main advantage is that there is no time limit for seeking to vacate the judgment of divorce, and also, you do not have to cite the above listed reasons. The disadvantage is that you have the burden of proving the bad service, which is done at a special court hearing called a "traverse hearing", where the judge decides whether or not there is any merit to the lack of service claim.

Alternatively without having to appear in court and incur legal fees, both you and your spouse can sign a "Stipulation of Vacatur" on consent which is a written agreement filed with the county clerk to vacate the default judgment of divorce.