IT IS IMPORTANT TO ENFORCE THE AUTOMATIC ORDERS IN A NEW YORK DIVORCE CASE BEFORE THE FINAL JUDGMENT OF DIVORCE IS SIGNED BY THE COURT
DIVORCE LAWYER NASSAU COUNTY NY
Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 32 years of experience suggests that a litigant should enforce his or her rights under the automatic Orders before a final judgment of divorce is signed by the Court.
A restraining order prevents a party in a divorce case from selling or transferring property. The reason behind a restraining order is that many unscrupulous spouses, try to hide or sell off assets of the marriage. In New York, parties no longer need to apply directly to a judge for a restraining order, as the retraining order and other orders are now automatic. These “Automatic Orders” go into effect when a divorce case is filed in New York. There is no requirement that a Supreme Court Justice sign the Automatic Orders before they become effective. The automatic Orders bind the plaintiff (the filing party) when the Summons is filed with the County Clerk’s office. The Automatic Orders bind the defendant when the defendant is served with the Summons with Notice (of the Automatic Orders). This blog focuses on the Automatic Order which addresses the parties property. Succinctly, it provides that the parties may not “sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, . . .) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with” the divorce action.
In a recent case, determined by the Appellate Division, 2nd Department in New York, the Appellate Court held that the remedy of civil contempt of Court for a violation of the Automatic Orders is no longer available once the divorce judgment is signed. What that means is that if there is a violation, a proceeding to hold the offending party in contempt of Court must be completed before the divorce judgment is signed or it is waived. While the Appellate Court did list the other remedies available to the aggrieved party, contempt of Court for violation of the Automatic Orders was not one of them.
Thus, in my opinion, it is absolutely critical to enforce a party’s rights for violation of the Automatic Orders as soon as the violation is discovered by initiating a contempt proceeding unless circumstances mandate a different approach. The exceptions must be analyzed to see if they have applicability before any contempt proceeding is initiated.
I believe that it is important to hire a seasoned and experienced matrimonial attorney if there is a risk of dissipation of assets. Extreme care must be exercised to ensure that assets are preserved for distribution by the Court.
Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 30 years. Please feel free to contact me, H. Michael Stern, Esq., a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter at firstname.lastname@example.org or by phone at 516-747-2290.
My office is conveniently located adjacent to the Roosevelt Field Mall ring road at 666 Old Country Road in Garden City, New York.
Written by. H. Michael Stern, Divorce & Family Lawyer, Nassau County, Long Island