The court potentially would enforce the division of property and assets within a divorce decree in New York. If there is a settlement agreement, which is the case in about 95% of divorces, then the parties would just follow the settlement agreement and judgment of divorce. If the settlement agreement requires them to sell a house, they would just sell the house on their own. There is no real mechanism to police that except in the violation. If, in this example, the settlement agreement says you have to sell a house within a certain period of time and one party refuses, the remedy is to file an application with the court to enforce the divorce decree. Then the court can decide to do many things – as examples, they can grant counsel fees in the violation, they can sanction a person for violating the order, they can issue a specific order taking away the ability of the party to jointly consent to brokers or set listing prices.
If there are continued violations, the court can eventually appoint one party or the other to be the “receiver” to sell the property. In other words, they will not need the other party’s signature or consent to sell the property.
Are Child Support Or Spousal Maintenance Ever Part Of The Property Division In A Divorce Decree?
Yes, child support or spousal maintenance absolutely can be a part of the property division in a divorce decree. Those issues can be components of a property division resolution. Both maintenance and support are also factors the court would take into consideration in property division and asset division. Usually, however, the agreements are global settlements. In other words, as part of the division of property and assets, there will also be in a separate section of the settlement agreement regarding maintenance and child support. But it’s all part of one package. A common way to settle maintenance and/or child support is to give a party more or less of the property and assets. Likewise, you can give a party more maintenance and less support or vice versa.
All of these three issues – the asset property division, the maintenance, and the child support – can all play off each other to structure which one would be best for both parties. Parties are recommended to consult either a certified financial planner or an accountant for extra advice on which would make the best financial sense for them, especially if they are looking to play one off against the other.
What If My Ex-Spouse Does Not Do What The Judge Orders In The Property Division?
Most agreements would require the person to send out a “default notice letter.” More recently, that is usually done just by email, but it can be by certified mail. It is basically just calling that violator’s attention to the fact they are violating the agreement and they have a certain number of days, usually 30 days. Some agreements say 10 or 20 days to rectify the alleged violation. In other words, you are specifically saying: “you are violating the agreement,” refer to the section in the agreement and say “this is why I think you are violating the agreement and if you disagree, please let me know why you think that you are not violating the agreement” and why you think you are in compliance.
If the other side does not respond or, more importantly, doesn’t rectify the violation, then the other party who is not violating the agreement can file an application in the court. It is common s/he will attach to their application a copy of the default notice letter saying they tried to avoid court. This in effect says to the Court “I sent this letter out to this other party, they ignored it (or at least didn’t rectify the violation) and that’s why I am here.” Doing so sets themselves up even better for an award of counsel fees or sanctions, which they should request in New York. That is done by an order to show cause if filed in Supreme Court.
How Long Do I Have To Request Enforcement Of A Division Of Property Order In New York?
There is no specific timeframe unless your agreement says otherwise. At the same time, you do not want to let it go many years because at some point, the other side will have a defense called “latches” – which means, in a nutshell, if you sit on your rights at some point you lose them. So, usually I’d advise people if there is a violation to file your enforcement action at least within either several months or not more than about a year or so after the violation because again, at some point, it becomes stale.
What Can’t A New York Enforcement Order Do When It Comes To Property And Assets?
There are probably many things an order cannot do when it comes to property and assets. An order of enforcement cannot require a party to jump backwards through a flaming hoop is one example. There is also “public policy” which means that orders cannot violate provisions of common decency, but also where the courts or the legislature has determined that something is not proper to be inserted into those types of orders. A common example is that an order cannot generally erase child support arrears. Even if somebody has been found to violate a property division or asset division issue, the court cannot punish you by vacating child support you would otherwise be entitled to, because that would be against public policy. Certainly, the appellate courts are there to police whether the trial court awards too much in terms of counsel fees or a violation order which runs afoul of the law.
Besides, usually a court does not jail somebody for violating an order unless it is an order of child support where the person owes a large sum of money and have no clear intentions of paying it.
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