On January 30, 2013 22 NYCRR 202.16a
was amended. What does this mean? How will this affect your divorce? And why am
I writing about this? The answers are: Keep reading, keep reading, and this is
important. In that order.
22 NYCRR 202.16a is the counterpart
to DRL §236(B)(2)(b) and it requires the plaintiff in a matrimonial action to
cause the defendant to be served with a “notice of automatic orders” which informs
the parties, inter alia, that neither
party may in any way dispose of any property without written consent of the
other party or by order of the court, except in the regular course of business,
for customary household expenses, or in order to pay reasonable counsel fees in
the divorce. We’ll refer to these prohibitions as “automatic orders”.
This is a terrific directive as it
ensures that your soon to be ex-spouse will not sell your vacation home without
your written consent during your divorce. You love that home, it has the
biggest pool on the block, your kids learned to swim in the pool and your
friends are openly jealous of what you modestly call your “vacation home”
(truth: it’s a castle). You are not ready to part with it. So what happens if
your unloved one (we’ll kindly refer to the unloved one as your “soon to be ex”)
during your divorce sneakily sells the house for half its value (possibly
accepting the other half of the payment as a promissory note, transfer of
stocks, benefit to his/her business, or cash, as this is just the type of
transaction a sneaky person will undertake)? Your soon to be ex will earnestly
explain to the court that this is really his separate property, he purchased it
with his own money, his name is solely on the deed, and besides, the real
estate market is terrible and he sold it for the best price he could, the
proceeds were used to pay off debts, and there is simply no money from the sale
proceeds to share with you. But you know in your heart that your soon to be ex
is doing what he best does-suavely talking his way out of yet another questionable
and downright unethical act. What is your remedy?
Until the recent amendment of the
law, your remedy was unclear, as the courts were divided on the appropriate
remedy for a violation of the automatic orders. Some courts ruled that the
violation of the automatic orders is not subject to a punishment of contempt of
the Court (see Buoniello v. Buoniello,
No. 35948/09 [Sup. Ct. Suff. Co., May 7, 2010]), while other courts held that
the automatic orders are in fact orders of the court and a violation of the
automatic orders may be subject to contempt of the court (see Sykes v. Sykes, 2012 N.Y. Slip.
Op. 22049 [Sup. Ct. N.Y. Co. February 29, 2012]).
As of January 30, 2013 the
following provisions have been added to the body of the automatic orders:
1.
“Upon service of the summons in every
matrimonial action, it is hereby ordered that…” (body of the automatic orders
follows, see 22 NYCRR 202.16a) (This clearly designates the directive
prohibiting transfers during the divorce as “Orders”).
2.
“These automatic orders shall remain in full
force and effect during the pendency of the action unless terminated, modified
or amended by further order of the court or upon written agreement between the
parties.” (This clearly sets forth the timeframe of the applicability of the
orders).
3.
“The failure to obey these automatic orders may
be deemed a contempt of the court.” (Our favorite new provision in the
automatic orders.)
The recent amendment will serve to
resolve the courts’ division on the appropriate remedy for a violation of the automatic
orders. Now all the courts will have
contempt of court at their disposal to punish violators of the automatic
orders. Now your soon to be ex will think twice before sneakily selling your
vacation home during the divorce. And if he doesn’t, then jail may be his new
home. Thank you Administrative Board of the Court for your recent amendment to
22 NYCRR 202.16a. We love it! May justice reign uniformly in the Matrimonial
Parts of the Supreme Courts of the State of New York.
