Broken Promises: Enforcement of Divorce Judgments

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Broken Promises: Enforcement of Divorce Judgments

You are divorced at long last, finally, receive your judgment of divorce, and are ready to move forward with your life. But then your spouse violates one or more of the terms of your decree. You have very clear rights should this happen and are entitled to enforcement, violation, and sometimes modification. 

Why Violation of Judgments Happen

While it is not uncommon to see a violation of any part of a divorce decree, violations are most common when it comes to child support and child custody and visitation portions of a judgment. It may be surprising to learn that court orders can be so easily ignored or willfully broken by your ex. 

There are a variety of reasons people feel emboldened to violate an order of the court:

  • They believe they are above the law and that the court can't truly tell them what to do
  • They violate orders as a form of revenge against their former spouse
  • They want to create more conflict and force their former spouse to use their time and money to return to court and continue to engage with them
  • They cannot accept a decision made by the court and refuse to live by it
  • They don't believe their former spouse will hold them accountable

Why Enforcement is Up to You

After the court enters your judgment of divorce, your court case is over and the court is no longer involved in your life. There is no ongoing monitoring or oversight by the court. If your former spouse violates any part of the judgment, it is up to you to note it and seek enforcement. The only way the court will know if there has been a violation is if you or your attorney take action. 

What to Do When There is a Violation

If your former spouse violates any portion of your divorce judgment (including custody, child support, spousal support, distribution of property, or an order of protection), you should gather and document as much evidence as possible. 

Please keep copies of emails or texts, make notes about phone calls, take notes on things that happen, and keep any physical evidence that further shows what happened (such as photos of your spouse removing property that is not theirs or approaching you when there is an order of protection in place). The next step is to call your attorney and share exactly what happened, with as much detail as possible. 

The court you go to in New York State will depend on what your divorce decree specifies. In general, cases involving custody, child support, or orders of protection are handled in Family Court (and child support may be heard by a magistrate, not even a judge). Cases involving property distribution or alimony are handled in the Supreme Court. 

However, your attorney likely made sure your divorce decree included a provision stating that the Supreme Court will have continuing exclusive jurisdiction over any matter involved in your case. This is preferred because not only is the Supreme Court already familiar with your case, but because Family Court is crowded, busy, and very, very public. It is not unusual to wait for hours for your case to be called in Family Court. It is preferable to keep jurisdiction with Supreme Court, but your decree must state this for your case to be heard there.

Possible Consequences of Violation

Failing to pay child or spousal support or violating an order involving custody or property or an order of protection is a serious matter. Courts take violations very seriously because violating the order not only hurts the other former spouse, but it shows disregard for the authority of the court. 

When the court finds there has been a violation of a divorce judgment, it can take a variety of actions to enforce that judgment. When child or spousal support has not been paid, the court can issue an income deduction or wage garnishment order. The court can also issue a judgment against the paying spouse for the amount unpaid. 

When the court finds there has been a violation of a custody or visitation matter, the court can modify the judgment to reduce that person's parenting time. It can also, in extreme cases, order a complete change in custody. This is used when there has been parental alienation in which one parent has refused to allow the other parent any visitation or contact with the child against the court's order. 

In any type of matter, the court can hold the violator in contempt of court. Contempt of court is a serious situation. The court can impose fines and jail time. In most situations, imprisonment of up to 30 days is allowed. If the order that was violated was an order of protection, the court can order up to three months behind bars. Additionally, the court can require the violator to pay the attorney's fees of the other party. 

Utilizing Violation as a Springboard for Modification

When your former spouse violates a divorce judgment, not only are you in a position where your ex is not doing what they are required to do by the court (thus causing financial distress or disruption in your personal life), but you have to spend time and money to go back to court to enforce the judgment. This is a major inconvenience, but your attorney may be able to use the situation to your advantage.

For a custody and visitation violation, this can be a springboard to seek a modification. Modification of custody orders can be considered when there has been a change of circumstances. The other parent violating the order can be considered a change of circumstances. 

Your attorney may be able to seek a modification of your child or spousal support if there has been a change in circumstances, it has been three years since the order was entered or last modified, or there has been an involuntary change income of at least 15 percent (up or down for either party). Failure to pay may create a change in circumstances. 

An order of protection can be modified to become more stringent, and it can be extended. Note that distribution of property can generally not be modified. 

A violation of divorce judgment does not need to go unanswered. Working with your attorney, you can enforce the order, require consequences, and even obtain a modification of the judgment to your benefit. 

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Dror Bikel

Dror Bikel is a Manhattan-based divorce and child custody lawyer. He founded and leads Bikel and Schanfield, New York’s best-known firm for high-conflict matrimonial disputes.

As founding partner of the Manhattan-based firm, Bikel & Schanfield, LLP, Dror Bikel’s 20+ years of trial and litigation experience offers invaluable insight in facilitating settlements, mediating disputes and obtaining superior results for his clients. A recipient of the New York Super Lawyers Award, Mr. Bikel is voted among the Top 5% New York State Family Law Attorneys.

To connect with Dror: 212.682.6222 or [hidden email] or online
To learn more about Bikel & Schanfield: bikellaw.com
To learn more about Dror's book The 1% Divorce: When Titans Clashsuttonhart.com

For media inquiries or speaking engagements: [hidden email]



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