Fill and Sign the To Vacate Default Form

SUPREME COURT OF THE STATE OF NEW YORK 12/15/04 COUNTY OF_____________________ county in which divorce is pending -----------------------------------------------------------------X Index No.________________ insert court index no. Plaintiff, AFFIDAVIT IN SUPPORT OF ORDER TO SHOW CAUSE -against- TO VACATE DEFAULT JUDGMENT Defendant. --------------------------------------------------------------------X STATE OF NEW YORK ) ss.: COUNTY OF________________ ) where this affidavit is signed I, ____________________________, being duly sworn depose and say that: your name 1. I am the Defendant in this divorce action. I make this affidavit in support of my application to vacate the Default Judgment. 2. There are______________ children of the marriage. fill in if applicable 3. The Plaintiff and I were married on ____________in . date place of marriage 4. I defaulted in this action because: (check applicable boxes) ‘ A) On____________________, I was given a Summons with Notice or a Summons date and Complaint for this case. (cross out one). (attach Summons with Notice or Summons and Complaint) 1 At the time I was not represented by an attorney. On___________________, I served, via regular date mail, a Notice of Appearance upon the Plaintiff’s attorneys, (attach Notice of Appearance if applicable) __________________________________. In addition, on , name date I personally filed a copy of the Notice of Appearance with the Supreme Court of New York, _______________County. I never received any other documents until the Judgment of Divorce. fill in (attach Judgment of Divorce) ‘ B) I was never served with a Summons with Notice or a Summons and Complaint. I found out about the divorce action only when I received a copy of the signed Judgment of Divorce on _________________. (attach Judgment of Divorce) date ‘ C) I received only an Affidavit of Defendant, and was unsure of what I should do. I was not served with a Summons with Notice or a Summons and Complaint. ‘ D) I was not properly served because: ‘ i) I was served on a Sunday. ‘ ii) The Summons with Notice or Summons and Complaint was handed to me by the Plaintiff. ‘ iii) The Summons with Notice or Summons and Complaint did not include an Index Number. Therefore, I was unable to file a Notice of Appearance. ‘ iv) Other:__________________________________________. ‘ E) Other reason for not answering: ________________________________________________________________________ _______________________________________________________________________. 2 7. I have a meritorious defense to the action because: (check applicable boxes) ‘ A) I have had an Order of Protection against the Plaintiff. (attach Order of Protection). ‘ B) The Plaintiff left the marital residence/bed on or about______________________. date ‘ C) The Plaintiff is currently in prison. ‘ D) I never committed adultery. ‘ E) I never committed the acts alleged in the Complaint. ‘ F) The Plaintiff has been having an affair with another person and is currently living with that person. 8. There are assets of this marriage which need to be divided between the parties. These assets include, but are not limited to: (check applicable boxes) ‘ Car ‘ House ‘ Plaintiff’s pension, 401(k), 457, IRA or other deferred compensation ‘ Bank account ‘ Business interest or partnership ‘ Advanced educational degree or license ‘ Marital furnishings ‘ Other:_______________________________. fill in 3 9. I need maintenance, because: ‘ I am unable to support myself. (check if applicable) ‘ I am in danger of becoming a public charge. (check if applicable) ‘ I have been left with significant marital debts, which Plaintiff has refused to pay. (check if applicable) 10. We have a child(ren) together, who are in my custody. (check if applicable) ‘ A) There is a current Family Court Order for Custody/Visitation, issued on_____________by the Family Court of ___________County, which is not date fill in mentioned in the Judgment of Divorce. (attach Family Court Order) ‘ B) I have had custody of the children since_____________________. date 11. The current Judgment of Divorce inappropriately awarded child support. ‘A) There is a current Family Court Order for Child Support, issued on_____________ by the Family Court of _____________County, which was not date fill in (cross out if not applicable) mentioned in the Judgment of Divorce. (attach Family Court Order) 12. Attached is my Proposed Verified Answer with Counterclaims. (see Exhibit A). 13. No previous application for the relief prayed for has been made. 4 WHEREFORE, I respectfully request that the Judgment for Divorce be vacated, and that I be granted the relief requested and given an opportunity to serve Plaintiff with the Verified Answer with Counterclaims. ___________________________ sign your name Sworn to before me this______day Print name, address and telephone no. of _______________, 200 ______________________________ (THIS AFFIDAVIT MUST BE NOTARIZED) ______________________________ ______________________________ 5