Penalty for Violation of Automatic Orders on Long Island
In every divorce on Long Island, when the summons and complaint are served upon the defendant there are matrimonial Automatic Orders included. The basic premise behind these orders is to maintain the status quo during the pendency of a divorce. Both parties are bound by the Automatic Orders and must refrain from transferring or encumbering real and personal property and retirement funds, the accumulation of unreasonable debt, and changes in beneficiaries on existing health and life insurance policies.
Spencer v. Spencer
In a decision handed down on February 28, 2018, the Appellate Division, Second Department, held that violations of matrimonial actions’ Automatic Orders can be grounds for a finding of civil contempt. In Spencer v. Spencer, the Plaintiff filed for divorce from her husband on July 18, 2012. The parties jointly owned, as a marital asset, a warehouse in Brooklyn. After the Final Judgment of Divorce had been entered, the plaintiff learned that the defendant had sold the warehouse during the pendency of the action without her knowledge or consent. This was in direct contravention to the Automatic Orders. At the time the defendant sold the property, New York Statutory Law precluded either party from transferring or in any way disposing of marital assets without the written consent of the other party or order of the court. The plaintiff asserted that the defendant received $300,000 in proceeds from the sale of the warehouse.
New York Courts have stated that in order to find a party in civil contempt, a court must find:
#1. that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect
#2. that the party against whom contempt is sought disobeyed the order
#3. that the party who disobeyed the order had knowledge of its terms, and
$4. that the movant was prejudiced by the offending conduct.
If a party is found to be in civil contempt by clear and convincing evidence, the court may impose as punishment a fine and/or imprisonment for up to six months or until the fine is paid.
In Spencer, the court held that “where a judgment of divorce has already been entered, the remedy of civil contempt is not available for a violation of the automatic orders after the judgment of divorce has been entered.” The Court of Appeals has recognized that once a Final Judgment of Divorce has been entered, the parties’ rights regarding the issues actually litigated, and those issues that could have been litigated, have been settled. Notwithstanding, the automatic orders are temporary and exist only during the pendency of the action until “terminated, modified or amended by further order of the court or upon written agreement between the parties.”
Other Available Remedies?
The court further held that, although this particular plaintiff could not take advantage of civil contempt, she could attempt to vacate the divorce based on newly discovered evidence, file a civil contempt motion for a violation of the judgment of divorce, file a proceeding to enforce the terms of the judgment of divorce or to obtain an order directing the payment of 50% of the value of the property which was awarded to the plaintiff in the judgment of divorce, or seek an amendment of the judgment of divorce.
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