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Divorce Law

When the Thrill of Victory Becomes the Agony of Non-Compliance:  Enforcing a New York Divorce Judgment or Family Court Order

What to Do If Your Spouse Refuses to Cooperate With an Order Directing Transfer or Sale of the Marital Residence.

Enforcing New York Child Support Orders.

Definitions of Legal Terms Used in this Article. 

Getting a successful order or judgment in New York divorce or family law case often requires years of hard work, substantial legal fees, and repeated appearances in court.  Therefore, it can be a thrilling moment when the victory finally takes place.  Sometimes, New York matrimonial judges issue their decisions by reading them into the record in open court.   More frequently, the judge sends a written decision to the attorney’s office by regular mail.  In either event, the thrill of victory is particularly satisfying in a divorce case because the issues are so personal to the parties.  Favorable alimony or child support decisions can have life-altering effects on the parties and their children.  For example, when a wife is given exclusive occupancy (possession) of a marital residence, her worst fears (the uncertainty of losing her home and safe place in which to raise her children) are put to rest.  An award child support to a mother can help her (and her children) from months of acute financial distress to financial stability.  Quite literally, a mother’s ability to provide warm meals for her children or buy school supplies are at stake in many child support cases.  

Sadly, the excitement of victory quickly fades when the losing spouse thumbs his or her nose at the court by wilfully refusing to follow the court order.  This can occur in countless different ways.   Sometimes, it is as simple as a refusal by a former husband to pay child support or maintenance (alimony) ordered of him by the court.    In other instances, the losing party will try, in various ways, to circumvent court orders relating to dividing pensions; relinquishing or splitting interests in property; or sharing of parenting time.

What to Do If Your Spouse Refuses to Cooperate With an Order Directing Transfer or Sale of the Marital Residence.

Frequently, a spouse will willfully resist a court’s order that a marital residence be either sold or transferred to the other spouse.   In 20 years of experience practicing divorce law in New York, I have seen countless examples of spouses who act out their dissatisfaction with rulings.  On several occasions, I have dealt with spouses who refuse to comply with a divorce judge’s directive to cooperate with efforts to sell the marital residence.   If they still live in the home, they may simply refuse to allow brokers to enter.  I have seen spouses who ensure that the marital residence is kept in state of disarray or disrepair so as to discourage any potential buyers from making offers.   

The good news is that because the foregoing situations are so common, New York case law is filled with examples of various legal enforcement remedies that you can request of the court.   I have personally handled several contested divorce cases in New York in which one of the spouses simply refuses to sign documents that are required to carry out a court’s directive regarding the transfer or relinquishment of real estate.  In such situations, the remedy provided by New York law is surprisingly straightforward.  Pursuant to New York case law, including decisions rendered In Treeza v. Treeza, 32 A.D.3d 1016, 822 N.Y.S.2d 121 (2nd Dept. 2006) and Ollah v. Ollah, 27 Misc.3d 1231(A), 911 N.Y.S.2d 693 (Queens Cty. Supr. Crt. 2007) and CPLR § 5106, you can ask the court to appoint you as a temporary receiver  to carry out the transfer of cooperative shares or deed.  Once you are appointed temporary receiver, your signature has the same legal force and effect as the signature of the other (offending) party.   Therefore, you can sign documents and undertake such actions as are required to carry the Judgment into effect with respect to the Marital Residence.  When you obtain an order appointing a temporary receiver, the person appointed by the Court can sign in place of the non-compliant party.

Enforcing New York Child Support Orders.

If the other parent of your child(ren) is failing to obey a child support order, you may file an enforcement petition with the Family Court.  Violation Petitions are also sometimes referred to, in technical terms, as an “Article 4 Enforcement Petition.”  A Violation of Support Petition  is relatively easy to complete and file.  You need only allege some very basic things.  In the Petition, you (the party seeking to enforce the child support order) are designated as the “petitioner”.  The other parent (i.e., the party who has failed to comply with the child support order) is the “respondent”.  The facts that you need to allege in your enforcement petition are extremely basic.  They include:

In your Enforcement Petition, you should state that the respondent’s noncompliance with his or her payment obligations was “willful”.  This will enable the Court to make a willfulness finding, which greatly increases the remedies that the Court may order to secure the respondent’s compliance.  A party who is found to have engaged in willful noncompliance may be adjudged in contempt of court.   Under New York law, a party’s failure to pay support as ordered by the court constitutes prima facie evidence of a willful violation.  In other words, once the petitioner establishes that there are arrears, the respondent has the burden of providing the court with credible evidence that he or she was unable to comply. 

Frequently, a payor will allege that he or she is simply unable to pay the amount of child support provided for in the last order, and they will ask for a reduction of the amount. You do not need to be concerned about arrears being erased by the court because under New York law, courts do not have jurisdiction to cancel or reduce arrears that accrued prior to the filing of an application. 

Definitions of Legal Terms Used in this Article:

Temporary Receiver:     Person appointed by the court to receive and preserve property or to serve as the medium through which the court acts; person appointed by the court to manage or effectuate the transfer of property in litigation, and is empowered to take charge of the assets. 

Petition:  Written application for relief addressed the Court.  In New York State Family Court, the initial pleading that is used to commence a legal proceeding is referred to as a “petition”.  This terminology is different than Supreme Court, where the term ‘complaint” is used to describe the initial pleading.    In all New York State family courts, you can fill in blank forms, which are available at the courthouse.  Once you sign and acknowledge your petition, the Family Court clerk will issue a summons and arrange for service, by regular mail, of the petition and summons on the respondent.

New York Family Court.  In New York, the “Family Court” exercises jurisdiction regarding child support, custody, visitation, domestic violence and related family law matters.  Unlike the Supreme Court, the New York Family Court does not issue judgments of divorce.  To a certain extent, the roles and jurisdiction of Supreme Court and Family Court overlap.  If you have questions regarding the appropriate court for your case, you should consult with an experience New York family law attorney, who should quickly be able to provide you with guidance regarding the appropriate court for your case.



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