Fuchs v. Fuchs
64 N.Y.S.2d 487 (1946)


  • A final judgment of divorce was rendered on April 15, 1946, in favor of H because W defaulted.
  • W intentionally defaulted because H promised her full custody of their child if she would permit him to obtain the divorce.
    • W had good grounds to contest the divorce because H was having an affair.
  • H then remarried.
  • H ended up wanting custody, so W moved to set aside the divorce.

Whether the rules relating to intentional defaults apply to divorce actions.



  • Where a party has deliberately and intentionally suffered a default, the motion to vacate will ordinarily be denied.
  • However, divorce is an exception because courts want to prevent collusion, and because of the general interest of the people of the state in the preservation of the matrimonial status of its citizens.
  • Thus, the motion to set aside the divorce was granted, and the fact that H remarried is basically irrelevant.

Rule: The rule against vacating a default intentionally suffered does NOT apply in divorce actions.

Rule: Parties who collusively allow a default judgment of divorce to be entered will have the judgment set aside and litigate the case on its merits.