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What if my husband does not pay me my spousal support under a court order during a New York divorce case?
October 15, 2020

What if my husband does not pay me my spousal support under a court order during a New York divorce case?

 The spouse in a Divorce case that  has the right to receive  support or preserve marital assets during a divorce case has many remedies of which to avail themselves .  This article deals primarily with the enforcement of an Order of the Court. A spouse also has the right to depend upon courts to enforce their orders.

There are steps to be had in order to secure your rights under an extant Court Order in a NY Divorce case, First, you can draw it to the attention of the court when you were in court. Next, if your spouse still does not pay, your attorney can make a motion to the court asking that he or she be compelled to pay. Once an order is given the courts have full discretion to enforce it in any way they feel is necessary to protect the right of the litigation. As per Judicial Rule section 753 the court has the power to imprisoned somebody for not obeying an order of the court. So, Since the spousal support award is a right you have in a divorce case, if it is defeated or impaired by failure of your spouse to pay pursuant to that spousal support Order, the Court may punish your spouse by a fine or imprisonment or both to remedy the misconduct.

There are two types of contempt. There is civil contempt and there was criminal contempt. First, you must have an actual lawful order to enforce that has been served and in effect. Next you must be able to show the court that the order has not been followed. Then, your spouse must be shown to have had some knowledge of the court order. That means he does not necessarily have to have been served with the order, but he hast to have knowledge of the order. Lastly, the moving party that they are prejudiced if the order is not enforced.

The remedy of civil contempt is also useful where the court orders that certain property be held in an escrow account during your divorce case so that one or the other of the parties do not squander that asset or try to hide that asset. For instance, let us say that your husband or wife purchased a piece of property during the marriage with marital assets and then sold the property and hit the proceeds. In that instance, you can apply to the court for an order that the money be returned and held in an attorney escrow account pending trial. If you find yourself to be in this sort of situation, speak to a Manhattan divorce lawyer to see if you are eligible to seek the remedy of civil content. It is not uncommon for parties to divorce action to ignore “orders. It is also not uncommon for parties to transfer assets during the marriage.  So, there are certain Orders in place that are called automatic orders and as to these orders you no longer must apply for them to ensure compliance.   in 2009 the New York Congress passed a law that provided for an automatic stay between the parties of transferring or disposing of marital funds or other assets. This automatic stay order is attached to the summons and complaint and the parties are deemed to have notice of it when it is served upon them. There is an exception to this order, that Being that the funds may be used for reasonable and necessary expenses or counsel fees. Still, it is important to keep a diary of these expenditures so that they are not challenged later down the line and so that you are not held in contempt of an automatic court order.

There is a difference between criminal contempt and civil contempt. What really serves to decide that there has been criminal contempt of court rather than Civil contempt of Court, it is a matter of degree.  If the contempt was willful then this will support a finding of criminal contempt. However, if the violation of the court order is not willful, then it is usually determined to be civil contempt of court.   Another distinction that can be drawn between criminal contempt versus civil contempt is the fact that a civil contempt finding is used as a way of vindicating the right of a party and compensating the party. On the other hand, criminal contempt is range at punishing a party for disobeying an order of the court because it is deemed to be an offense against the justice system in the public at large that trusts that the court will do equity on the parties.
Nonetheless, civil contempt Is still a remedy that involves the punishment of a fine or imprisonment. So do not let the language confuse you into thinking that you do not have to go to jail if the court finds you in civil contempt of a court order.

Before you can get an order of civil contempt or criminal contempt lost against you, you are entitled to a hearing. During a hearing on civil contempt, you may not take the fifth amendment to insulate yourself from potential liability.  if you decide to take the fifth amendment and remain silent during your hearing on the civil contempt motion, the court control a negative influence against you and punish you through jail or a fine.

The lesson and take away from all of this is that if you find yourself to be in a position where you have been ordered by the court to pay spousal support or not to dissipate marital assets, and you find yourself not being able to fulfill the terms of the order, then you should make a motion to modify the order rather than just ignore the order. As described above, there are significant consequences for ignoring court order  in a New York Divorce case.

To conclude, a New York divorce case is not different from any other civil case and the remedy of civil contempt is well within the reach of the Supreme Court that is hearing your case. if you are held in contempt of court and if you are incarcerated, be sure that the order of content imposes a jail term certain and an opportunity to purge the content by complying with the order. If you are held in contempt and incarcerated, you can cure the contempt by doing what the court says and paying with the court says. In other words, the keys to your own release are in your own hands.

Obviously, if you are facing a contempt of court it is a good idea to speak to a New York divorce attorney before trying to represent yourself

 

By:  Lisa Beth older, your  Manhattan divorce lawyer

This article is not legal advice, and its purpose is not to provide legal counsel  but merely is  provided as a courtesy for informational purposes only. Be sure to speak to an attorney and do not rely upon this information except for the purposes intended as stated in this disclaimer.