Will he have to comply with our divorce agreement?
While laws vary by state, if your ex violates your divorce agreement, it’s possible that he could either lose some of his money or even be put in jail. The decrees, judgements and orders that are issued in family court and that make up your divorce agreement are legally binding. The divorce agreement obligates both parties, by law, to do as it says.
When your ex violates the divorce agreement, it’s uncommon for a police officer to just show up at their door. However, if your ex has fallen far behind in child support, it’s possible that the court will file a bench warrant for his arrest, which could lead the cops to show up at his door and arrest him. This tends to only happen if the parent has a history of not paying child support. When you tell the court that your ex didn’t abide by the divorce agreement, the judge can send your ex an enforcement motion, sometimes called a motion for contempt, which requires them to appear in court.
Defenses for Breaking the Divorce Agreement
If your ex is unable to follow the divorce agreement, he may present an affirmative defense. For example, if the divorce agreement says your ex has to pay a certain amount of money in child support every month, but he’s lost his job since that divorce agreement was put into effect, he will have to show proof that he can’t afford the child support and that he’s been looking for a job. This would be his affirmative defense. Note that an affirmative defense cannot simply be saying that the divorce agreement was unfair – it has to show specifics for why the divorce agreement cannot be followed now.
Consequences of Breaking a Divorce Agreement
While the exact consequences will be based on the offense itself, the court will most likely order your ex to do what they were supposed to do. He also make have to make amends for not doing it in the first place. For example, if you have to take your ex to court because he violated the divorce agreement, he may be required to pay your legal fees. If your ex hasn’t been paying you the money he’s owed, his wages could be garnished until you’re paid in full. If your ex hasn’t allowed you the right amount of visitation with your kids, the judge may require him to allow you extra visitation to make up for the missed time. Also, if you end up taking your ex to court multiple times for the same violation, he could end up being charged with contempt of court, which could potentially lead to time in jail.
Preventing a Problem
If you know that your ex is going to have trouble sticking to the divorce agreement, and that there’s a legitimate reason for this, it may be better to go back to court in order to modify the divorce agreement before it becomes a problem. If circumstances have changed in your life or your ex’s life, the court will probably be willing to adapt the alimony, child support or visitation agreements so that you can both adhere to the new divorce agreement and avoid problems in the future.
Can I take half the money out of our joint bank account?
Divorce often leads otherwise rational people to behave in questionable ways. As a result, it’s prudent to consider how you plan to handle your finances before you file for divorce. Conventional wisdom counsels that you should take half of the money out of your bank account before filing for divorce. But is this a wise choice?
Deciding whether or not to take half of the money out of your joint bank account requires a nuanced understanding of your finances and a clear grasp of how you plan to approach your divorce. Divorce is a complex legal proceeding that progresses through a number of different stages. Each stage has specific and limited goals. A critical understanding of the possible outcomes for each discrete part of the process is a key factor in successfully navigating your divorce. Working towards an outcome that is appropriate for each specific phase is an important part of how a lawyer works.
Spouses in New York are entitled 50 percent of jointly titled funds. Transfers from jointly held accounts must take place before legal action begins. New York automatically places restrictions on these sorts of transactions after the initiation of a divorce.
Once a divorce is filed, the judge usually enters an Automatic Temporary Restraining Order (ATRO). This ATRO places limits on the ways in which both you and your spouse may use the money in the joint bank account. You may, however, petition the court for access to the funds during the case.
While you do have the right to 50 percent of your jointly titled marital funds, it doesn’t necessarily follow that you should take money out of the account. Withdrawing money before filing for divorce is a particularly aggressive act that can make the coming divorce proceedings more combative than they need to be. And under no circumstances should you ever withdraw more than 50 percent of the money in the jointly titled bank account. This is true even if your spouse has other accounts titled only in their name to which you believe you are legally entitled.
In reality you have two separate financial issues to consider. First, you need to determine how you plan to pay for attorney fees and living costs in the immediate future. The post-divorce division of marital assets is a second, but related, issue. Division of marital assets is a matter for the court to decide. And courts frown on self-help activities in the area of marital asset distribution by any party.
The most practical option to make sure your immediate needs will be met involves open communication with your spouse about liquidating the jointly held bank account with each party taking 50 percent of the money. This ensures that you will have sufficient means to pay for your immediate living expenses and attorney fees. Think of the final distribution of marital assets as a separate issue.
Speak with your attorney about the best approach to determining how to appropriately address the situation before taking any definitive action. Your attorney will most likely speak with your spouse’s lawyer and together all parties can create a sensible resolution to the immediate problem.