Automatic Orders During Divorce Can Only Be Enforced Prior to the Entry of Judgment

WHAT ARE “AUTOMATIC ORDERS”?

When a divorce action is filed and defendant is served, among other documents that person is served with a ‘Notice of Automatic Orders.’ Those orders are designed to keep the status quo with respect to certain issues, without a judge having to act.

WHAT ISSUES DO THESE AUTOMATIC ORDERS COVER?

Automatic Orders prohibit the sale or transfer of real or personal property without the consent of the other party or an order of the court. This doesn’t apply to spending related to the normal course of business, usual household expenses, or reasonable attorney fees. Automatic Orders prohibit the sale or transfer of retirement accounts without the consent of your spouse or a court order. Automatic Orders prohibit further borrowing against any home equity loan, taking out new loans on any assets, or using credit cards for anything outside the normal course of business, usual household expenses, or reasonable attorney fees. Automatic Orders prohibit you from dropping your children or spouse from any medical insurance policy. You are also prohibited from dropping the policy altogether – health insurance must remain in effect. Automatic Orders prohibit changing the beneficiary of any life insurance policy and require that the parties keep all life, auto, homeowners, and renters insurance in place. The idea behind Automatic Orders is that everything stays the same during the divorce to avoid any sudden changes. If you do need to make big changes because of unusual circumstances, there are ways to go about it.

A RESTRAINING ORDER PREVENTS A PARTY IN A DIVORCE CASE FROM SELLING OR TRANSFERRING PROPERTY.

The reason behind a restraining order is that some 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 are imposed on the plaintiff when the Summons is filed with the County Clerk’s office. The Automatic Orders are imposed on the defendant when the defendant is served with the Summons with Notice, and a Notice of the Automatic Orders.

WHAT HAPPENS IF THE AUTOMATIC ORDERS ARE VIOLATED?

In a recent case, decided by the Second Department of the Appellate Division, Spencer v. Spencer, the 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. Thus, any contempt proceeding must be completed before the divorce judgment is signed or there is no longer a remedy for the violation it is waived.

The facts in Spencer are straightforward. Following the entry of her November, 2015 divorce judgment, the wife discovered that while the divorce action was pending, her husband sold a warehouse in Brooklyn, without the knowledge or consent of the wife or the court, netting $300,000.00.

Pursuant to Court Rule 22 N.Y.C.R.R. §202.16-a, the automatic orders are binding upon a plaintiff upon commencement of the matrimonial action and upon a defendant upon service of the summons or summons and complaint (see Domestic Relations Law §236[B][2][b]). Automatic Orders seek to preserve the status quo while the action is pending, by prohibiting the transfer or encumbrance of real and personal property and retirement funds, the accumulation of unreasonable debt, and changes in beneficiaries on existing health and life insurance policies.

The wife, then, brought a motion to hold the husband in civil contempt (Judiciary Law §753). After a hearing, the trial court granted that motion and directed that unless the defendant purged the contempt by immediately paying $150,000.00 to the wife, the husband would be incarcerated every weekend for a period of six months. The husband appealed.

The Second Department reversed. In doing so, it stated the elements needed to be proven by clear and convincing evidence to support a finding of civil contempt are:

      • that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect;
      • that the party against whom contempt is sought disobeyed the order;
      • that the party who disobeyed the order had knowledge of its terms; and
      • that the movant was prejudiced by the offending.

The husband argued that the automatic orders do not constitute “unequivocal mandates” of the court, but are merely administrative rules. The Second Department affirmed that part of trial court’s decision that the automatic orders could form the basis for a finding of contempt. The appellate court found the husband’s argument contrary to the express language of 22 N.Y.C.R.R. §202.16-a, as well as being against public policy.

However, the Second Department 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.

In the context of a matrimonial action, the Court of Appeals has recognized that a final judgment of divorce settles the parties’ rights pertaining not only to those issues that were actually litigated, but also to those that could have been litigated.
The automatic orders are temporary and exist only “in full force and effect” during the pendency of the action until “terminated, modified or amended by further order of the court or upon written agreement between the parties” (22 NYCRR 202.16-a[b]). Upon entry of a judgment of divorce, the purpose of the automatic orders ends, and, when the life of the automatic orders thus expires, the statutory remedies for their enforcement fall at the same time.

In the context of a matrimonial action, the Court of Appeals has recognized that a final judgment of divorce settles the parties’ rights pertaining not only to those issues that were actually litigated, but also to those that could have been litigated. The automatic orders are temporary and exist only “in full force and effect” during the pendency of the action until “terminated, modified or amended by further order of the court or upon written agreement between the parties” (22 NYCRR 202.16-a[b]). Upon entry of a judgment of divorce, the purpose of the automatic orders ends, and, when the life of the automatic orders thus expires, the statutory remedies for their enforcement fall at the same time.

Public policy concerns recognizing the finality of judgments are additional reasons to find that, after a judgment of divorce is entered, a party is not entitled to pursue a motion for contempt of court for a late-discovered violation of the automatic orders even though such violation occurred during the pendency of the divorce action. Preventing vexatious litigation and promoting judicial economy, as well as the goal of avoiding inconsistent rulings where a judgment of divorce might actually conflict with the finding in a hearing on a violation of the automatic orders, also dictate the conclusion that a remedy of civil contempt is not available for a violation of the automatic orders once a judgment of divorce is entered.

While reversing the trial court, the Second Department noted that the unavailability of civil contempt as a remedy to enforce the terms of the automatic orders after the entry of the judgment of divorce did not render the wife without available remedies. It listed a variety of approaches, including a vacatur of the judgment of divorce based on newly discovered evidence, a civil contempt motion for a violation of the judgment of divorce, 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 amendment of the judgment of divorce are all remedies that the wife could have sought.

Thus, it is absolutely critical to enforce a party’s rights for violation of the Automatic Orders as soon as the violation is discovered by filing a contempt motion unless circumstances mandate a different approach.