J.K. v. H.K.

Family Law

New York Law Journal


Justice Linda Christopher

Husband moved to vacate his purported default and permitting him to interpose an answer to wife's verified complaint. He also sought a declaration of validity of their separation and property settlement agreement. Wife cross-moved for dismissal of husband's answer and counterclaim, and declaring the agreement invalid, and unenforceable. Husband argued his failure to timely answer had no prejudicial effect on wife. The court agreed, noting wife failed to specify any prejudice to her resulting from husband's failure to timely answer. Also, it found husband provided a reasonable excuse for his delay, including a meritorious defense, and the lack of prejudice to wife, granting vacatur of his purported default, and leave to interpose an answer. Husband further counterclaimed for a conversion divorce based on the agreement, arguing they have substantially complied with and ratified its terms, and it was valid on its face. He alleged that even if the child support provision in the agreement was invalidated, as it was not Child Support Standards Act compliant, that would not vitiate the entire agreement. The court found the counterclaim sufficient to withstand dismissal, but ruled issues of fact regarding its validity required a hearing.

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