My clients often asked me what to do if their ex-spouse is not paying them as per the terms of the divorce judgment. In New York State you may bring a motion in the form of an order to show cause to ask the judge to show cause why your spouse should not be abiding by the terms of the divorce judgment. There are several remedies available to you under these circumstances.
If you are seeking enforcement of child support, the courts act very quickly to remedy the situation. Often times, you can go to New York Family and this procedure tends to move more quickly than an Order to Show Cause in Supreme Court and it is a more user-friendly system.
To modify or enforce a judgment sometimes Family Court and Supreme Court have concurrent jurisdiction, especially as to child custody, spousal support, and child support. However, when it comes to the terms of equitable distribution, it becomes a little more difficult because Family Court does not have jurisdiction over equitable distribution and property rights so you will have to address your concerns in Supreme Court. This is more costly because the Supreme Court has filing fees, and it is often best to seek or retain legal counsel since it is often difficult to navigate through the judicial system. It is often times very important to at least consult with an attorney before trying to enforce or modify the terms of your divorce judgment. If you are applying pro se in order to obtain access to the court system you will have to serve all of your papers in hard copy form unless you can get your spouse to consent to electronic filing.
Modification of the equitable distribution terms of your divorce judgment is very difficult to do since your best remedy is to appeal the Judgment and that usually has to happen in thirty days. However, there are some circumstances where your application to modify the terms of the Judgment are appropriate, such as where there has been fraud.
Moreover, your papers must be in a special form, which is usually in the form of an order to show cause, a supporting affidavit, and any and all exhibits that support your position. You will need to notarize these papers and then file it with the County Clerk. The Court will review your order to show Cause and will set a date for both parties to appear in court to argue their positions.
You will then need to be sure to serve your spouse with the paperwork that the judge signed along with all the underlying documents. If your spouse does not appear in court, you may ask for a default. You may also ask the court to hold your spouse in contempt of court if his or her violation is intentional. these procedures are very hyper technical, and it is best not to try it by yourself without consulting with an attorney. Sometimes things change in life, and you need to request that you amend your divorce judgment to serve your purposes.
You may also move to modify a divorce judgment by bringing a motion to the court. This will have to be filed by you in the office of the clerk of the court in the county where the divorce was issued. This is important because you cannot simply walk into any court in New York and enforce your divorce judgment. It has to be filed in the court where the original divorce action was promulgated.in order to change your divorce judgment. You will also use the vehicle of the order to show cause and. You will want to attach your sworn affidavit which includes all facts in support of your case, and any exhibits you might which support your position. Be sure to attach the judgment and order that you are trying to modify as you do not want to have to have the judge taste on your paperwork.
If you are trying to enforce a New York State divorce judgment that was granted in another county, then you may be able to do so, but additional work may be needed for this, you should consult an attorney; suffice to say that the best course of action is to file where the judgment was issued. The County Clerk’s office in New York requires a fee if you are filing a motion. This fee at this time is $45 promotion. If you cannot afford to pay your fee, you can ask the court for assistance in paying through a poor person application. If you are filing your papers in a different County in New York that differs from where you got your divorce judgment then you will have to pay an additional $210 and $95 so that you can purchase a new index number and number. If the judge grants your Order you will be advised at which point then this Order should be filed with the Court Clerk, along with a copy of the Original Order to Show Cause and served upon your spouse. (If you do not hear back from the Court Clerk then check on the status either on NYSCEF E-filing system or call the Matrimonial Support Office in the County where you filed. Be sure to serve the resulting Order in the manner in which the court directs. After that, the person who serves the order will need to file an affidavit of service, which will need to be filed with the county in which you filed your action. Generally, speaking, and unless otherwise ordered by the court, it is best to prepare your ow. order and submit it to the judge for execution. Good luck in your endeavors!
By: Your New York Divorce Lawyer
Lisa Beth Older, Esq.
CAN I ENFORCE OR MODIFY MY NEW YORK DIVORCE JUDGMENT