Whether a decree incorporates the terms of a settlement agreement between spouses, or a court orders the decree’s terms after a divorce trial, they are equally binding. A spouse can’t simply ignore them -- at least not without risking potentially serious repercussions. In New York, failure to obey the provisions of a decree can result in jail time if a spouse doesn’t have a good reason.
Child Support Provisions
New York’s Support Collection Unit, or SCU, closely monitors child support provisions of the state's divorce decrees. Parents who pay support are legally obligated to make their payments through the SCU, so the SCU knows immediately if they’re not paying or if they stop paying. The SCU does not need court approval to take enforcement measures against non-paying parents. It can seize tax refunds, freeze bank accounts and report the non-paying parent to credit bureaus. In severe cases of non-compliance with the child support terms of a decree, the CSU has the option of involving the court. If the court intervenes, the non-paying parent is subject to money judgments and possible jail time.
Other Decree Provisions
When an ex-spouse doesn’t obey other terms of a decree, such as alimony or property distribution, the wronged spouse must act on her own to enforce the order. She can do this by filing an Order to Show Cause with the court. When approved by a judge, this order commands the non-compliant spouse to appear before the judge to explain why he hasn’t done what the court ordered him to do. The non-compliant spouse has the right to retain an attorney or have one appointed for him, and he or his attorney can plead his case to the judge and try to explain his failure to perform.
Unless the non-compliant spouse can raise an adequate defense and give the judge a good reason why he disobeyed the decree, the court can find him in contempt. However, the judge must find that he acted “willfully,” meaning he intentionally set out to disobey the order or blatantly ignored it. If so, a judge can order imprisonment, fines or both. When a judge orders imprisonment for the non-payment of alimony or the non-payment of money in exchange for marital property, the offending spouse can go to jail for up to six months or until he makes his payment, whichever comes first. The same punishment could apply if he refuses to transfer title to an asset or relinquish property under the terms of the decree. These limits don’t apply to child support. If the SCU involves the court, and a judge orders imprisonment for non-payment of child support, the non-paying spouse might remain in jail indefinitely until he arranges to pay his past-due arrears.
The condition that non-compliance must be willful is pivotal to an ex-spouse’s defense if he wants to argue that he doesn’t deserve punishment for disobeying the court order. If he can prove that he doesn’t have the money to pay, and can’t possibly get the money, his behavior is not willful -- circumstances beyond his control prevent him from doing what the decree ordered him to do. If an ex-spouse finds that he simply can’t perform, he should confer with an attorney as soon as possible, because New York law does provide him some options. He can file a motion himself, requesting a change to the terms of the decree because of a change of circumstances. Even if he’s not successful in getting the terms changed, his effort to do so implies that he’s not willfully or maliciously ignoring the order.
- New York State Division of Child Support Enforcement: Custodial Parent Information
- New York State Unified Court System: Modify/Enforce Judgment of Divorce Procedure for Erie County (PDF)
- Onecle: New York Domestic Relations Article 13 § 245 Enforcement by Contempt Proceedings of Judgment or Order
- Korotkin Law: Contempt and Enforcement of Court Orders
- Weinstein, Kaplan & Cohen: Post-Divorce Modifications