Contempt and Enforcement of Court Orders

One remedy to a failure of one party to abide by existing court orders that is available to the parties in divorce and other family law actions is contempt of court. The power to punish for contempt arises out of the inherent power of the court, which is limited by §753(A)(3) of the Judiciary Law. It provides, in part:

753. Power of courts to punish for civil contempts
A. A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases:
3. A party to the action or special proceeding, an attorney, counsellor, or other person, for the nonpayment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution can not be awarded for the collection of such sum except as otherwise specifically provided by the civil practice law and rules; or for any other disobedience to a lawful mandate of the court.
8. In any other case, where an attachment or any other proceeding to punish for a contempt, has been usually adopted and practiced in a court of record, to enforce a civil remedy of a party to an action or special proceeding in that court, or to protect the right of a party.

The power of contempt is exists to punish the party who engages in an evasion or a violation of duty, or misconduct, which resulted in defeating or prejudicing the other party’s rights. There are a number of procedural requirements that have to be strictly followed in order for the court to find a party in contempt. A motion to punish for contempt will be dismissed unless on its face it contains both a notice that the purpose of the hearing is to punish for contempt and that such punishment may consist of a fine or imprisonment. Without this notice and warning, the court is without jurisdiction to punish for contempt.

The party must also be advised by the court of the right to counsel and assigned an attorney if financially unable to obtain counsel. In addition, DRL §245 requires a finding that payment cannot be enforced pursuant to DRL §243 or §244 or CPLR §5241 and §5242 and the exhaustion of these remedies or a finding that they would be ineffectual as a prerequisite to a contempt for disobeying an order requiring payment of money in a matrimonial action.  The court must find that the violation was willful and find expressly that the actions of the defaulting spouse were calculated to or actually did defeat, impair or impede or prejudice the other spouses rights or remedies. Nonpayment alone does not establish the requisite willfulness to support contempt. DRL §246(3) provides that financial inability to pay is a defense to a contempt proceeding under DRL §245. A person who asserts in an opposing affidavit financial inability to comply with the order is entitled to an evidentiary hearing to determine whether he or she has an ability to pay.

The punishment for contempt for failure to make ordered payments is imprisonment until payment is made. The defaulting spouse may pay the money due and be released. If the court finds that the party committed the offense charged and that it was calculated to or actually did defeat, impair, impede or prejudice the rights or remedies of the other spouse, the court must make a final order directing fine, imprisonment or both, as it finds necessary.

Civil Rights Law §72 limits the length of imprisonment for nonpayment of alimony, maintenance, distributive award, special relief in a matrimonial action and counsel fees in a divorce case to three months for a default of less than $500, and to six months for $500 or more. Noticeably absent is any mention of child support. If a party has an actual loss or injury because of the proven other spouse’s misconduct, a fine must be imposed sufficient to indemnify the aggrieved party and when collected, paid to the aggrieved party.

In contrast to the DRL, the Family Court Act (FCA) takes a tougher approach by providing for commitment as one of the remedies for nonpayment of support. Section 454(2) provides that where a respondent is brought before the court for failure to obey any “lawful order” of the Family Court for support and following a hearing the court is satisfied that the respondent has failed to obey the order, it may enter a money judgment, make an income deduction order, require an undertaking, make a sequestration order or suspend the respondent’s driving, professional or business license.

Here is an example of how a contempt application will be viewed by the court. In a recent case, H.S.M. v J.T.M., 2011 N.Y. Slip. Op. 50069(U) (Sup. Ct. Nassau Co. 2011), the court was asked to hold defendant in contempt of Court for his willful failure to comply with the Judgment of Divorce entered in this action , and for his willful refusal to pay the sum of $43,351.87, together with interest. The parties’ marriage was dissolved pursuant to the Judgment of Divorce, entered June 24, 2008, which incorporated but did not merge with a Stipulation of Settlement, dated December 19, 2007. The Stipulation stated in pertinent part that:

The Husband shall pay to the Wife, as and for child support, the sum of One Thousand Seven Hundred Eighty-five ($1,785.00) Dollars per month … The parties agree that the child support payments will be made through the Nassau County Support Collection Unit. [Article XXVI]

Pursuant to the Order of the Hon. Denise L. Sher, J.S.C., dated October 4, 2006, the Court ordered pendente lite relief awarding to the Wife the sum of One Thousand Four Hundred ($1,400.00) Dollars per month temporary maintenance, as well as child support in the sum of Two Thousand ($2,000.00) Dollars per month. The award was retroactive to the date of service, which was July 18, 2006. [Article XXVII]

The Husband agrees that arrears for child support and maintenance as of the date of execution of this Agreement amount to Thirty-Eight Thousand Two Hundred ($38,200.00) Dollars, and agrees to the entry of judgment for said arrears. Said arrears shall be liquidated by the Husband paying to the Wife the sum of Three Hundred ($300.00) Dollars per month until all arrears are paid. The Father further agrees that in order to liquidate arrears, the Father shall remit to the Mother his income tax return refunds that he receives commencing with the tax year 2007 and shall pay over to the Mother the entire refund by June 1, 2008, and by June 1st every year thereafter until such time as his arrears have been liquidated. [Article XXII]

The Husband shall pay to the Wife, as and for spousal maintenance, the sum of Four Hundred ($400.00) Dollars per month…through support collection. [Article XXXVI]

Pursuant to the “So-Ordered” Stipulation of the parties dated May 19, 2010, “Def[endant] agrees to pay to Pl[aintiff] as and for child support arrears the minimum sum of $1,000.00 (One Thousand and no/100) by May 26, 2010.

Wife claimed that Husband has willfully failed to i) comply with the Judgment of Divorce dated August 6, 2008, which incorporates the Stipulation; ii) comply and pay the money judgment entered on February 3, 2010, in the sum of $49,746.27; and iii) comply with the “So-Ordered” Stipulation entered into by the parties on May 19, 2010. Wife claimed that subsequent to the entry of the money judgment, she contacted the Nassau County Office of Child Support Enforcement to seek payment of the child support obligation for the parties’ three children, as well as maintenance for herself. She claimed that notwithstanding the attempts of the Child Support Enforcement Bureau, no payments have been received from the defendant or his employer. She further alleged that the total sum now due and owing is $87,864.01, and that none of it has been paid.

In February of 2010, husband testified that he has no assets nor property which could be sequestered. In support of her application, wife claimed that nothing less than a fine and incarceration will persuade the husband to comply with the Court orders and judgments. She argued that other enforcement devices, including income deduction orders, income executions or sequestration will be unsuccessful in view of husband having made himself judgment proof; moving out of the State of New York; and failing to comply with any judgment or stipulation entered into by the parties.

Wife claimed that she is attending graduate school but that in the interim, she is completely dependent on her family for her support and the support of the parties’ three children. She claimed that the last time she received any funds from husband was in March of 2010, and that since that time she has received no support payments or maintenance. She argued that based upon those facts, husband’s intentional non-compliance with the judgment, orders and “So-Ordered” Stipulation has defeated, impaired and prejudiced her rights.

The court stated that a contempt citation is a drastic remedy which should not be granted absent a clear right to such relief.  Further, to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt willfully violated a clear and unequivocal mandate of a court’s order, with knowledge of that order’s terms, thereby prejudicing the movant’s rights.  The court further held that pursuant to Domestic Relations Law §245, before a defaulting party can be held in contempt for the non-payment of a sum of money, it must appear “presumptively, to the satisfaction of the Court,” that the movant exhausted the less drastic enforcement remedies available under Domestic Relations Law §§ 243, 244 and 245, CPLR §§ 5241 and 5242, or such other enforcement mechanisms that would be ineffectual.  Once the movant has made a prima facie showing that the party against whom a contempt citation is sought has failed to pay a sum of money as ordered, the burden then shifts to the obligor to adduce some competent, credible evidence of his inability to make the required payments, in order to show that the failure to pay was not willful. The court determined that wife has satisfactorily demonstrated the existence of a clear and unequivocal mandate of the court, and that husband has knowingly violated the order’s terms, thereby prejudicing her rights. The court also found that other methods of enforcement would prove ineffective in light of husband having made himself judgment proof. The court, however, determined that it must conduct a hearing to determine husband’s willfulness in violating the subject orders. In order for a non-compliant party be incarcerated for his willful violation of the court’s mandates, the movant must prove such willfulness beyond a reasonable doubt.

The above decision illustrates that while contempt is a remedy, it may require a substantial motion practice and, most likely, a hearing.  Thus, contempt motions should not be brought unless all other remedies were exhausted.

Disability Payments, Divorce and Equitable Distribution

I have previously written about different classes of property that most of the time will be considered to be separate property of the party during the divorce.  Periodically, divorce lawyers have to deal with situations where one of the parties becomes disabled during the marriage and begins to receive disability payments, either social security disability or payments under a private disability insurance policy.

In a recent case, Masella v. Masella, 2009 N.Y. Slip. Op 08190 (2nd Dept. 2009), the Appellate Division, Second Department, held that the proceeds of the defendant’s disability insurance policies are his separate property. Similarly, the court held that the proceeds of the defendant’s Social Security disability benefits also are his separate property, and are not subject to equitable distribution.  The reason that Social Security benefits are not subject to equitable distribution, is because Social Security benefits are not a pension.  With respect to the disability insurance, any disability insurance payments constitute compensation for personal injury and would not be subject to equitable distribution.

In a situation where one of the parties is disabled and is receiving disability payments, the other party might not be able to obtain equitable distribution of such payment, regardless of the amount received.  While some may argue that this may not be fair to the other party, the above principles are uniformly applied in New York divorces and are unlikely to be overturned in the future.  When handling similar situations, divorce attorneys will need to investigate the source of payments, the reasons for them and try to figure out if the income can be reached in some other way, perhaps by a spousal maintenance claim.

Custody, UCCEJA and Jurisdictional Issues

I often deal with situations where either parent  and/or their child relocates to out of state and the other wishes to petition the court for custody of the child, visitation, or modification of existing order or, perhaps, enforcement of a custody order.  While in many cases the noncustodial parent seeks court intervention because the custodial parent relocated without permission, there are situations where the consent was given initially but then intervening events resulted in the need for modification or enforcement of the current custody order.

New York, as well as many other states, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCEJA”).  UCCEJA aims to discourage interstate child abductions and to prevent “forum shopping” by parents trying to strategically remove the child to a state  to avoid another state’s jurisdiction.  The statute explicitly sets forth the circumstances in which New York courts have jurisdiction, particularly when there is a question which state has the right to exercise jurisdiction because one parent and/or the child no longer resides in New York.  Although it is usually invoked in petitions seeking custody or visitation, or modification and/or enforcement of custody or visitation orders, it also applies to guardianship proceedings, divorce, paternity, child abuse or neglect, termination of parental rights, and domestic violence cases. Since jurisdiction is usually not in issue when the child lives in New York or has moved from the state within six months of filing the petition, the UCCJEA helps to resolve jurisdictional issues in other circumstances where the child has moved to another state or his or her physical presence in the state.  These include cases where the noncustodial parent lives in New York but the child does not; where the child moved from the state more than six months prior to the filing of the petition (but without the noncustodial parent’s consent or to somewhere unknown to that parent);  or where the child is in New York and there are concerns of abuse and/or neglect. These are all scenarios that warrant the application of the UCCJEA.

The UCCJEA sets forth alternative rounds of asserting jurisdiction, which are:  1)  where it is in the best interests of the child based on the “significant connections”  to the state and there is “substantial evidence” within the court’s jurisdiction concerning the child’s current or future care; 2) where there is an emergency situation ; 3) where no other state has jurisdiction or 4) another state has refused jurisdiction.

New York courts’ jurisdiction under the first ground only applies to cases where there is no home state and there has not been a home state for the past six months.  This limitation is imposed by the federal statute, the Parental Kidnapping Prevention Act which trumps the UCCJEA because of the constitutional supremacy clause (Article VI, Clause 2).  This act serves to provide more uniformity amongst states, resolve conflicts between various states that may have an interest and to address the inconsistency caused by the application of the prior act, the Uniform Child Custody Jurisdiction Act (“UCCJA”), which was the basis for states applying their own version resulting in inconsistent orders.  Its objective is to avoid forum shopping, while encouraging the preference for the issuing state to maintain jurisdiction so long as one of the parents or the child remains a resident of the state.  Based on this, as well the two part analysis required to meet the criteria, there are rare cases where this particular section applies.  For example, showing that there are “significant contacts with the state” may be attainable, but proving that there is “substantial evidence” concerning the child’s current or future care is much more challenging.

New York courts’ jurisdiction under the second ground arises typically in child abuse or neglect cases or where the child was abandoned by the parent or legal guardian.  However, although the act serves to limit jurisdiction to situations where some emergency intervention by the courts is required, the statute is strictly construed.  In other words, a mere allegation of abuse and/or neglect is not enough, the courts must be convinced that abuse or neglect actually exist, placing the child’s physical and/or emotional well-being into question.   And even still, the courts may assert only limited or temporary jurisdiction, deferring the case to the home state of the child for further proceedings.  Furthermore, the child must physically be present in the state, and cannot be removed from the state for any reason under this provision.

New York courts will assert jurisdiction under the third ground in the cases where the child has not had a home state anywhere during the previous six months and no significant connections or emergency situation exists.  This is really a safety measure, an effort to avoid the case going unheard by any court.  Cases like this arise when the child moved from New York, then to another state for a short period (less than six months), then back to New York less than six months before the filing of the petition.

New York courts’ jurisdiction under the fourth ground will be asserted in the cases where another state, presumed to have been the child’s home state, has denied jurisdiction based on its own provisions.  Typically states will deny jurisdiction for lack of significant ties, there is a case already pending in another state, there is a more convenient forum or merely for parties’ failure to ascertain legitimate residence, as is the case when parents take the child from another state and hide him or her from the noncustodial parent long enough to establish jurisdiction.

When it comes to modifying a child custody order in New York that was issued by another state, New York will not exercise jurisdiction unless the state that entered it no longer has jurisdiction.  So even if it is the non-custodial parent that remains in the issuing state, while the child and the custodial parent relocated to New York, that state still has jurisdiction unless it declines jurisdiction.  Conversely, New York will enforce a custody order if the child and one parent lives in the state if the order is registered in New York.

The above issues tend to be factually oriented, and family law lawyers will carefully review the parties’ circumstances before and after the move, and any other fact relevant to jurisdictional determinations.

A recent example of application of the above principles, took place in Felty v. Felty, 2009 N.Y. Slip. Op. 05859 (2d Dept. 2009). In Felty, the primary question was whether New York should exercise home-state jurisdiction in a child custody proceeding. The Appellate Division held that the facts supported the mother’s contention that she intended to remain permanently in New York where the children’s six-week visit to Kentucky during the summer of 2007 was a temporary absence, which did not interrupt the six-month pre-petition residency period required by the UCCJEA.

The court found that the father took no affirmative steps prior to the commencement of the New York proceeding to establish permanent residence for the children in Kentucky and the children’s six-week summer visit was merely a temporary stay similar to a summer vacation.
The court stated that even if there was a wrongful removal by the mother, such a removal will not be treated as a temporary absence if there is evidence that the taking or retention of the child was to protect the mother from domestic violence. Here, the mother misled the father about agreeing to reconcile their marriage because he would not permit her to return to New York if she refused to attempt reconciliation. Finally, the court agreed with the lower court’s finding that treating the six-week visit as a temporary absence “permits parties to child custody proceedings to freely vacation and visit family members in other states without fear of losing home-state status.”

As described above, courts will carefully review all of the circumstances related to the parties’ and children’s residences, as well as the reasons for any move. If you are dealing with a situation where a dispute may be litigated in two different states, it would be a good idea to speak with an attorney who has experience dealing with UCCJEA.

Payments on Pre-Marital Debt and Right of Recoupment – Update

I have previously written about the case of Mahoney-Buntzman v. Mahoney, 51 A.D.3d 732 (2nd Dept. 2008), which stood for the proposition that that marital property used to pay one spouse’s obligations incurred either prior to the marriage, or benefitting only one spouse, could be recouped.  In Mahoney-Buntzman, the Appellate Division held that the husband’s maintenance obligation to his first wife and the boat loan constituted debts incurred by him prior to the parties’ marriage and were solely his responsibility. Accordingly, the court granted to the wife a credit for one half of the payments made.

Last week, the Court of Appeals issued its decision in Mahoney-Buntzman v. Mahoney, __ N.Y.2d __, 2009 N.Y. Slip. Op. 03629 (2009), and reversed the Appellate Division holding that that marital property used to pay maintenance and child support to the husband’s wife from a previous marriage should not be recouped to the marital estate.  The opinion used very broad language which is likely to eliminate any kind of recoupment of marital money expended for separate property purposes.  Specifically, the Court of Appeals held that:

[D]uring the life of any marriage, many payments are made, whether of debts old or new, or simply current expenses. If courts were to consider financial activities that occur and end during the course of a marriage, the result would be parties to a marriage seeking review of every debit and credit incurred. As a general rule, where the payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets. Nor should courts attempt to adjust for the fact that payments out of separate property may have benefitted both parties, or even the non-titled spouse exclusively. The parties’ choice of how to spend funds during the course of the marriage should ordinarily be respected. Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end.

Expenditures made during the life of the marriage towards maintenance to a former spouse, as well as payments made pursuant to a child support order, are obligations that do not enure solely to the benefit of one spouse. Payments made to a former spouse and/or children of an earlier marriage, even if made pursuant to court order, are not the type of liabilities entitled to recoupment.

This is not to say that every expenditure of marital funds during the course of the marriage may not be considered in an equitable distribution calculation. Domestic Relations Law § 236(B)(5)(d)(13) expressly and broadly authorizes the trial court to take into account “any other factor which the court shall expressly find to be just and proper” in determining an equitable distribution of marital property. There may be circumstances where equity requires a credit to one spouse for marital property used to pay off the separate debt of one spouse or add to the value of one spouse’s separate property (see e.g. Micha v Micha, 213 AD2d 956, 957-958 [3d Dept 1995]; Carney v Carney, 202 AD2d 907[3d Dept 1994]). Further, to the extent that expenditures are truly excessive, the ability of one party to claim that the other has accomplished a “wasteful dissipation of assets” (DRL 236 [B][5][d][11]) by his or her expenditures provides protection. The payment of maintenance to a former spouse, however, does not fall under either of these categories.

Thus, it is unlikely that any recoupment will be allowed by the courts in the future.  This decision makes it even more important that each marital estate is carefully scrutinized by an experienced divorce lawyer to establish the respective rights and obligations of the parties.

Overpayment of Child Support and Right of Recoupment

Periodically, I am asked about situations where an overpayment of child support has taken place. Most of the time in those situations, I, as a lawyer, have to deliver to the client the unpleasant news that the amount overpaid cannot be recovered. This is true whether the child support was being paid pusuant to a judgment of divorce, separation agreement, or an order of Family Court. With respect to child support, there is a strong public policy against restitution or recoupment of any overpayment. See Katz v. Katz, 55 A.D.3d 680 (2nd Dept. 2008). The strong public policy considerations as decided by the New York courts, prevent recoupment or refund of child support paid. However, a parent may be entitled to a credit, enabling him or her to re-coup the overpayment of the child support payments against his/her share of the statutory add-on expenses – the portion of child support intended to cover child care and a child’s educational and special needs. See Coull v. Rottman, 35 AD3d 198 (1st Dept. 2007).

There are also certain limited circumstances in which a refund of child support may take place. For example, a refund may be directed when there was a mathematical error in the calculation of the amount of support (Colicci v. Ruhm, 20 AD3d 891 (4th Dept. 2005); when the support amount in the final order of support is less than in the temporary award (Maksimyadis v. Maksimyadis, 275 AD2d 459 (1st Dept. 2000)); or when it is shown that the subject child is not the biological child of the payor and there is no finding of estoppel (Thomas v. Commissioner of Social Services, 287 AD2d 642 (2nd Dept. 2001). There may be another category of cases where a refund of child support may be ordered. In Spencer v. Spencer, previously discussed on this blog, the Court of Appeals hinted that the recoupment may be available where it is ultimately determined that New York court lacked jurisdiction to order payment of child support.

If you are in a situation where you believe that child support was or is being overpaid, speak with an experienced family law attorney and find out what your options are and what can done in your particular case.

Basics of Paternity in Family Court

Paternity is the term which describes a father’s legally enforceable rights and responsibilities to his child. Determination of paternity in New York is governed by the Article 5 of the Family Court Act. In accordance with the Family Court Act, paternity may be established in one of three ways; by presumption, by an acknowledgment, or by court order. If the parties are married at the time of the child’s birth, New York presumes that the husband is the father of any children of the marriage. While this presumption is rebuttable, the concept of equitable estoppel, previously discussed on this blog, may also be applicable and even if the presumption is rebutted, may preserve the parties’ initial positions with respect to paternity.

If the parties were not married at the time of birth of a child, legal paternity may only be established by signing an Acknowledgment of Paternity (either at the hospital or at the local Department of Social Services, pursuant to Family Court Act §516-A) or by the Family Court entering an Order of Filiation. Once an Acknowledgement of Paternity is signed, it may not be vacated after six months of signing, unless it brought about by fraud, duress or material mistake of fact. Under those circumstances, the time is extended to one year.

If the parties are not married, and paternity is challenged, the determination of paternity will be made by the Family Court. A paternity proceeding is commenced in Family Court by the filing of a verified petition from the party seeking to establish paternity. If the woman is married, and is claiming that her husband is not the father of her child, her husband must usually be named as a party to the proceeding. Once the parties are in court, they have the option to consent to an order of paternity. If the issue of paternity is resolved by consent, i.e., agreement of the parties, DNA testing does not take place. If paternity is consented to, it becomes extremely difficult to overturn a consent order of paternity in the future.

If there is no consent order of paternity, the court will generally order a DNA test. See Family Court Act §522. Once the results of the DNA test are know, the parties once again will generally have the option to consent to an order of paternity, or request a hearing. If the case goes to a hearing, it is the party seeking to establish paternity who has the burden to prove paternity by clear and convincing evidence. If, however, the probability of paternity in the DNA test is 95% or higher, New York law presumes the man is the father, and it is now his burden to overcome this presumption. At the end of the hearing, the court will consider all properly introduced evidence, and either issue an order of paternity or dismiss the paternity petition.

Parties are not required to accept the results of the tests, and the party may challenge DNA testing by attacking either the chain of custody of the samples, or the underlying mathematics of the statistical analysis. Such challenges are very difficult, and can be very expensive.

However, as noted above, under appropriate circumstances the doctrine of equitable estoppel may prevent the child and the parent from being tested and prevent the father from denying paternity. For example, if the party has alleged paternity in some other court proceeding or document, that party may be prevented from denying paternity. Similarly, if a man has held himself out to be the father of a child, he may be estopped from denying paternity in court.

The time to commence a paternity proceeding under the Article 5 of the Family Court Act is at any time during the pregnancy of the mother, or after the child is born, but not after twenty one years, unless paternity is somehow acknowledged by the father, or he paid support.

When a DNA test is ordered, the court may direct that either party pays, both parties pay or the state pays for the costs of these tests, all depending on the resources of all parties. If the father is determined to be the father, and he is the one who filed the petition, the court will likely direct that he pays the cost of the DNA test.

Having one’s name on the birth certificate, providing emotional and/or financial support, or holding oneself as the father makes one the “putative” father. That person will be named in the New York State Putative Father Registry and requires notice to such father in the event someone tries to adopt the child, the child is placed in foster care, or if someone is seeking child custody or guardianship. However, signing the Acknowledgement of Paternity, having an Order of Filiation or having been married to the mother at the time of birth makes one the “legal” father. And although the rights and responsibilities are similar, there is a legal difference between the two.

Basics of Bankruptcy Discharge and Domestic Support Obligations

On occasion, a divorce may result in one or both of the parties filing for bankruptcy, often without an adequate understanding of the limited relief available in the bankruptcy court. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) directly addressed issues related to the dischargeability of marital debt and support obligations, as well as to the effect of the automatic stay on collection and enforcement proceedings out of divorce and family law litigation.

Under bankruptcy law, a “domestic support obligation” is any debt incurred before or after a bankruptcy filing that is owed to or recoverable by a spouse, former spouse, child or governmental unit; in the nature of alimony, maintenance or support; and established pursuant to the terms of a divorce decree, separation agreement, property settlement agreement, court order or administrative determination.

In Chapter 7 bankruptcy, essentially all marital and domestic relations obligations are not dischargeable, regardless of whether they are support in nature, property divisions or “hold harmless” agreements, provided they were incurred by the debtor in the course of a matrimonial proceeding or a divorce action which resulted in a separation agreement, divorce decree, court order or administrative determination.

A debtor’s obligation to pay marital debts directly to a third party ( ie., pay the mortgage on former marital residence) and to hold the former spouse harmless on said debts is also deemed to be non-dischargeable if the obligation has the effect of providing support to the former spouse. A debtor’s duty to pay the following expenses are usually deemed to be in the nature of support and not dischargeable: educational expenses of a minor child; medical insurance coverage for a minor child; and life insurance, with the minor children as beneficiaries.

Attorney’s fees owed by debtor to his own lawyer are clearly dischargeable in bankruptcy, but as a general rule, attorney’s fees owed by debtor to a former spouse’s attorney are not dischargeable, if the underlying legal proceeding resulted in the entry of an order or judgment directing payment of maintenance or spousal support to the former spouse.

The division of a debtor’s pension benefits during the divorce action is usually accomplished by entering a Qualified Domestic Relations Order (“QDRO”). Since division of a pension is considered to be a transfer by debtor of a present interest in his pension, and as such, it is not a debt that can be discharged in bankruptcy.

In Chapter 13 bankruptcy, past due domestic support obligations owed by a debtor are not dischargeable, unless they are paid in full over the life of the Chapter 13 plan. However, if a debt created by a separation agreement or judgment of divorce is not in the nature of support, it sometimes can be discharged in Chapter 13 without being paid in full.

For a Chapter 13 Plan to be confirmed by the Bankruptcy Court, it must: pay in full to the former spouse all domestic support obligations owed by debtor at the time of the bankruptcy filing, and the debtor must be current on all domestic support obligations incurred after the bankruptcy filing.

A Chapter 13 Plan, even if confirmed by the bankruptcy court, is subject to dismissal if the debtor fails to pay any post-petition or post-confirmation domestic support obligations, and a Chapter 13 discharge will not be entered by the bankruptcy court unless and until a debtor certifies that all domestic support obligations have been paid and that the debtor is current on such obligations.

The automatic stay created by a bankruptcy filing bars the commencement or continuation of most legal proceedings, but it has no effect on a proceeding to establish paternity; to establish or modify a child support order, determine child custody or visitation issues, or dissolve a marriage, except to the extent that such proceeding may seek to determine a division of marital property in which the bankruptcy estate also has an interest. In those situations, the divorce can be granted without first obtaining relief from the automatic stay, but the marital property cannot be divided without obtaining such relief.

The automatic stay also does not prevent the post-petition collection of domestic support obligations such as alimony or child support from any property belonging to the debtor, providing that the bankruptcy estate does not also have an interest in the same property; from automatic wage deduction orders created by a statute or judicial or administrative order; from the interception of debtor’s federal or state income tax refunds, or
from the withholding, suspension or restriction of a debtor’s driver’s license or professional or occupational license. Therefore, Bankruptcy Court does not offer much protection for someone seeking to avoid the domestic support obligations.

The above rules will apply to the proceedings in New York State courts. In Ross v. Sperow, 57 A.D.3d 1255 (3rd Dept. 2008), the Appellate Division had to address a situation where one of the parties was seeking to enforce a counsel fee award after the other party filed for bankruptcy. In Ross, multiple violation petitions had been filed by the parties over the course of several years. In August 2006, Family Court upheld mother’s motion for counsel fees and directed father to pay $5,000 of the mother’s counsel fees. Father filed for a Chapter 7 bankruptcy thereafter, and listed the award of counsel fees as an unsecured debt. Father’s bankruptcy was discharged in January 2007. Mother brought a violation petition which alleged that father failed to pay the counsel fees. Father moved to dismiss petition on ground that he discharged counsel fee award in bankruptcy. The Appellate Division stated that state and federal courts have concurrent jurisdiction over issue of dischargabilityof a particular debt and held that domestic support obligations in the nature of support are exempt from discharge in bankruptcy. While father contended that counsel fees incurred were for custody and visitation proceeding, the record reveals that mother’s initial petition commencing the proceeding raised issues of financial need and hardship. According to the Appellate Division, term “in the nature of support” is broadly interpreted in the context of discharge of debt obligations in bankruptcy and held that the award of counsel fees was in part in the nature of support, and as such, exempt from discharge in bankruptcy.

Divorce and Exclusive Possession of Marital Residence During Pendency of the Action

I am often asked by a party to a divorce action if the other party can be forced to leave the marital residence. My usual response is that it can be done under the appropriate circumstances. Exclusive use and occupancy of the marital residence may be awarded during pendency of a divorce action upon a showing that a spouse’s presence has caused domestic strife and/or that the spouse has voluntarily established an alternative residence. See, Domestic Relations Law §234; Annexstein v. Annexstein, 202 A.D.2d 1062 (4th Dept. 1994). The standard for granting exclusive possession is a flexible one and may include any circumstance warranting judicial intervention. See, Grogg v. Grogg, 152 A.D.2d 802 (3rd Dept. 1989) (The presence of marital strife can be a recognized standard for an award of exclusive possession). In I.Q. v. A.Q., 228 A.D.2d 301 (1st Dept. 1996), where there was no dispute of a significant potential for strife should defendant return, and no genuine issue raised that defendant’s exclusion from the marital residence would cause him more than minimal disruption, the motion court’s award of temporary exclusive possession, without a hearing, was a proper exercise of discretion. Id.

Similarly, in Iuliano v. Iuliano, 30 A.D.3d 737 (3rd Dept. 2006), testimony clearly demonstrated the existence of marital strife between the parties requiring an award of exclusive possession to insure the personal safety of the parties. Given the disparate financial circumstances of the parties, the award of exclusive possession to defendant was deemed to be proper. Id. In Mitzner v. Mitzner, 228 A.D.2d 483 (2nd Dept. 1996), the Supreme Court was found to have properly awarded the defendant temporary exclusive possession of the marital residence, given the domestic strife caused by the plaintiff’s presence in the home and the fact that he had voluntarily established an alternative residence. Id. See, also, Block v. Block, 245 A.D.2d 153 (1st Dept. 1997) (In light of husband’s admission that due to marital strife, he voluntarily vacated the marital residence shortly after signing a one-year sub-lease for an apartment, and the unrebutted expert evidence concerning the impact of the domestic strife on the wife prior to the husband’s departure and the potential harm to the wife and children if the husband returned, the motion court erred in not granting the wife’s cross-motion for exclusive occupancy of the marital residence and in granting the husband’s motion for complete access thereto).

If the presence of one party has caused significant domestic strife in the marital residence and that party has sufficient means to secure an alternate residence, the other party may be granted exclusive use and occupancy of the marital residence. During a divorce, exclusive possession is one of the most important tools available to a divorce lawyer to improve client’s position, and to force the other party to establish a separate household. Grant of exclusive possession is likely to have significant consequences with respect to custody, visitation, temporary maintenance and other issues. Since the grant of exclusive possession under Domestic Relations Law §234 is within the court’s discretion, it is difficult to have it overturned on appeal.