Khlevner v. Khlevner, Index No. 34411/05

Supreme Court of New York Appellate Division Second Department

Unfortunately, divorce can be a lengthy process. This case highlights the procedural complications that can arise during a divorce, causing it to drag on longer than parties anticipate. In 2008, attorney Yonatan Levoritz gained a successful appellate decision for his client in the case of Khlevner v. Khlevner.

In 2006 the client, then represented by a different attorney, obtained an ex-parte divorce. An ex-parte proceeding is one in which only one party is physically present in court. Ex-parte divorces are possible when one spouse lives in New York and the other does not.

Providing Notice

Whenever an ex-parte divorce is allowed, it is especially important that the party not showing up has been properly notified and has been given a chance to represent themselves in the divorce hearing. No binding decision can be made against a party that was not properly served with notice of a case.

In this case, the client served the spouse with notice of the divorce in 2005, just prior to filing the initiatory papers for the divorce in court. Following that, the client also gained an affidavit signed by the spouse, agreeing to the divorce and settlement agreement.

The Divorce

In March of 2006, the client presented the affidavit in a divorce hearing and the divorce was granted.

Vacating the Divorce on Procedural Grounds

However, the spouse in this case claimed that the affidavit was fraudulently induced and asked the trial court to vacate the judgment. At the hearing on this issue, rather than consider the argument of fraudulent inducement, the court instead vacated the judgment on a procedural ground. The spouse should have been served with notice of the divorce after the initiatory papers were filed. As the trial court stated, “service before the filing of initiatory papers was a nullity.”

Reversing the Decision on Appeal

Although the trial court was correct to note that the notice should have come after the filing of the divorce, it was incorrect to vacate the judgment. On appeal, the appellate court noted that “the defendant waived any objection to the defect in commencement by failing to raise a timely objection thereto.” The appellate court remitted the case for a new hearing in 2008.

One lesson of this case is that the proper procedural steps should always be followed in a divorce to keep unnecessary issues from dragging a case on longer than needed. Another lesson of the case is that a procedural error should be objected to in a timely fashion. Otherwise, a party implies consent to moving forward, and a court will not want to re-litigate the same things again unless it absolutely has to. Here, the appellate court made the right decision—the fact that the spouse was served with notice prior to the filing of the initiatory papers was a mistake, but it did not require starting over the entire divorce process.

If you would like more information about the divorce process, please contact the Law Office of Yonatan Levoritz today.