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Court Grants Husband Second Chance to Vacate

As reported in the New Jersey Law Journal, the Appellate Division recently reversed and remanded a trial court’s decision to deny a motion to vacate a default judgment of divorce.

The case, Kaznosky v. Kaznosky, involved a husband who missed the deadline to file an answer & counterclaim to his wife’s divorce complaint. In New Jersey, a spouse has 35 days to file an answer & counterclaim after being served with the divorce complaint. After 35 days, the spouse who filed the divorce complaint (the “plaintiff”) can request a default judgment of divorce, whereby the court grants a divorce without the other spouse’s participation.

In this case, the trial court’s decision stated that the husband voluntarily entered into the Final Judgment of Divorce (FJOD). The trial court therefore said that because he did not file an answer and did not file a motion to vacate the default, the husband gave up his right to dispute the FJOD.

However, the record indicated that when the husband appeared at the default hearing, he argued that he could not afford to pay the amount of child support requested by his wife. In fact, he said he could not afford it “without becoming homeless and having to claim bankruptcy.”

Here, the Appellate Division held that the trial court would not have necessarily denied the husband’s motion to vacate the default judgment of divorce had it not mistakenly found that Husband voluntarily agreed with the terms of the FJOD. The Court thus reversed and remanded the trial court’s decision.

This case shows some of the complex procedural requirements of a New Jersey divorce. If you anticipate going through the divorce process, please do not hesitate to contact the Philadelphia family lawyers at Petrelli Previtera.