Divorce Law Gets Teeth

Not more than thirty years ago (I had barely hit puberty) the divorce laws in New York were radically different, beginning with the requirement that one of seven grounds must be plead and proved in order to be granted a dissolution of the sacred union. Prior to the 2010 enactment of N.Y. D.R.L. § 170(7) (“Irretrievable Breakdown of the Marriage Lasting More than Six Months”) unhappy couples  needed a really good reason for legal dissolution.  This presented an inherent barrier to divorce because gender roles were well established post WWII and having two cars in the garage, 2.5 children and an Electrolux was supposed to be enough to establish a joyful union in any household. Humans also have a remarkable varied tolerance for emotional pain and discomfort, thus what constituted “cruel and inhuman” to any particular woman may not merit the attention of a divorce attorney.

The other grounds, such as abandonment, adultery, and imprisonment, though fairly straightforward also required an onerous burden of proof.  Adultery had to be proved (necessitating the use of private investigators and hidden microphones) and abandonment required proof that “no tidings” be received from the evanescent spouse for a two-year period. Sexual abandonment was also a potential fulcrum used to loosen the nuptial union, but be careful of that penitent spouse whispering sweet nothings and bearing bouquets, one slip of judgment back into the marital bed could result in a viable defense of condonation.

Divorce pursuant to a  judgment of separation is equally burdensome, requiring a judicial decree of separation after a period of two years have passed.  Said decree may then be converted into a divorce.  Another option, more efficient than the last is divorce pursuant to a separation agreement. Once all the ancillary issues of money, property and custody are agreed upon and put forth in a contract, the unhappy couple may convert that contract into a divorce after a period of six months.  However, any slight waiver in judgment  resulting  in coitus or cohabitation makes the entire agreement null and void.

When a wife finally collected enough evidence to  leave an abusive or controlling spouse she was faced with the daunting task of survival during the pendency of the action. A divorce could reasonably drag on for years before any kind of settlement was reached. I have personally heard horror stories of brilliant women whom I respect and admire trudging through nearly a decade long divorce without any support or maintenance.

One woman I know was married to a prominent doctor who had a penchant for younger women. When he finally decided to leave the marriage, they had six children between the ages of two and twelve.  He closed all the joint bank accounts, moved out without a forwarding address, and refused to give her a dime for food.  This woman was extraordinarily bright and resilient. She used what she had; a surplus of land (they lived on a farm) and her artistic talent. She leased acres of land to corn farmers growing feed for cattle. She  grew vegetables and sold them to a local grocery chain. And, she wove beautiful tapestries and rugs that she sold at craft fairs. The family struggled for some time waiting for the divorce decree and division of marital assets.

Although the adoption of D.R.L. 170(7) simplified the divorce process making it somewhat bearable,  the real change in divorce law did not occur until February 2018.  (Yes, I said February, 2018.)  Once the summons and complaint is filed in a divorce, Domestic Relations Law § 236 (B) (2) (b) and Uniform Rules for Trial Courts (22 NYCRR) § 202.16-a, (hereafter “Automatic Orders”) go into effect prohibiting the transfer, sale or dissipation of marital assets by either party during the pendency of the divorce. (The only exception being for  payment of attorney fees accrued in the action).  These orders, although conspicuously placed in bold italic font on the front of every summons for divorce are rarely enforced with the full thrust of the law.  Thirty years ago my friend was left penniless because of this issue.  Sadly, for the past two decades, litigants have engaged in the same conduct;  secreting, depleting, moving and hiding away marital property without consequence.

On February 28, 2018 the Appellate Division, Second Department  took a hard-line. In Spencer v. Spencer (159 Ad3d at 156) the court considered whether a litigant may be held in jail for contempt of court for violating the automatic orders. The answer was a resounding “Yes. upon application to the court.” In Spencer, after the action commenced, the husband sold a warehouse in Brooklyn for $300,000 without prior knowledge of the wife. The wife’s counsel made application to the court and the court held husband in contempt, sentencing him to weekends in jail until he paid the $150,000 to the wife, representing her equitable share of the sale. The lesson here is fairly straightforward, do not presume that because you are now living separate and apart you can close the joint bank account, sell rental properties or any property without consent of your spouse. Even if the funds are needed for attorney fees, it is better to make application to the court for approval.

Contempt has been a practical, if heavy-handed tool used for child support enforcement for more than a decade. Once an order of support is entered by the court, failure to make payments in a timely manner and accrual of arrears can and will result in a willfulness finding (willful failure to pay your support obligation), regardless of the circumstances.   Once a finding of willfulness is entered, the court has the authority to sentence you to ninety (90) days in jail if you do not make payment immediately of the entire arrears amount. The court will often set a “purge” amount that you can pay to be released. However, this is typically the entire amount of arrears owed. Your best option is to hire an experienced attorney familiar with these proceedings to protect your liberty interests.  Please contact my firm for more information about how to proceed if you are the Respondent in one of these cases, or if you are owed child support arrears and have been unsuccessful in receiving payment.

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Andrea L. Gamalski Attorneys at Law

Andrea L. Gamalski understands how important it is to have a compassionate and empathetic family law attorney who fights hard for their clients in the courtroom–mainly because she’s been one of these clients herself.

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