Automatic Orders in New York Divorce: What You Can and Cannot Do

What are automatic orders in a New York divorce?

Automatic orders are court orders that take effect in every New York divorce without either spouse asking for them. No judge signs them in your case; they are written into DRL § 236(B)(2)(b) and repeated in the court rule at 22 NYCRR 202.16-a.

The orders apply to both spouses equally, in the matrimonial actions listed in DRL § 236(B)(2), including actions for divorce, separation and annulment. In practice, they keep money, property and insurance where they are while the case is pending.

The spouse who starts the case (the plaintiff) must serve a copy of the orders on the other spouse (the defendant) with the summons. That is true in uncontested cases too; the court system’s uncontested divorce instructions list the Notice of Automatic Orders among the papers served with the summons. See our uncontested divorce guide.

When do automatic orders take effect, and how long do they last?

The start date differs for each spouse. Under DRL § 236(B)(2)(b), the orders bind the plaintiff “immediately upon the filing of the summons, or summons and complaint,” and bind the defendant “immediately upon the service of the automatic orders with the summons.”

A spouse who has not been served with the orders is not yet bound by them. That is not a license to move money: in dividing marital property, a court can consider transfers made in contemplation of a divorce without fair consideration, including transfers made before the orders took effect.

Each order lasts until the judgment of divorce is entered or the action is dismissed, discontinued or stayed, whichever comes first. Before then, it can be ended or changed only by a further court order or by a written agreement between the spouses that is “duly executed and acknowledged.”

The six automatic orders in plain English

1. Do not sell, transfer, hide or encumber property

Neither spouse may “sell, transfer, encumber, conceal, assign, remove or in any way dispose of” any property without the other spouse’s written consent or a court order. The order reaches property “individually or jointly held by the parties,” including real estate, cash, bank accounts, stocks, mutual funds, cars and boats.

The order is not limited to marital property; it covers property in one spouse’s name alone, and there is no dollar threshold. The only exceptions are spending “in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.”

2. Leave retirement accounts alone

Neither spouse may transfer, encumber, assign, remove, withdraw or otherwise dispose of assets in an IRA, 401(k), profit-sharing plan, Keogh account or “any other pension or retirement account” without the other spouse’s written consent or a court order. Both must also refrain from applying for retirement benefits or annuity payments, although a spouse “who is already in pay status may continue to receive such payments thereunder.”

This order has no exception for household expenses or attorney’s fees.

3. Do not run up unreasonable debt

Neither spouse may “incur unreasonable debts.” The statute’s examples are further borrowing against a credit line secured by the family residence, further encumbering any assets, and unreasonable use of credit cards or cash advances. The same three exceptions apply: the usual course of business, customary or usual household expenses, and reasonable attorney’s fees for the case.

4. Keep health insurance in place

Neither spouse may cause the other spouse or the children of the marriage to be removed from existing medical, hospital or dental coverage, and each must keep that coverage “in full force and effect.”

5. Keep other insurance in place and leave life-insurance beneficiaries alone

Neither spouse may change the beneficiaries of any existing life insurance policy, and each must keep existing life, automobile, homeowners and renters insurance in force. The order does not mention disability insurance, and its beneficiary rule refers to life insurance policies. Before changing a beneficiary on any other account, get advice.

6. Tell your spouse about liens, foreclosures, bankruptcy and lawsuits

A spouse who receives notice of a tax lien, foreclosure, bankruptcy or litigation that could adversely affect the marital estate, or of the lifting of a bankruptcy stay, must send written notice to the other spouse “within ten days after receiving such notice.”

What you can still do while the orders are in effect

The automatic orders are not a freeze on all spending. Within their exceptions, each spouse can generally:

• pay customary and usual household expenses, such as rent or mortgage payments, utilities, food and the children’s ordinary costs;
• run a business in the usual course of business;
• pay reasonable attorney’s fees for the divorce from non-retirement funds, or borrow reasonably to pay them;
• transfer property or retirement assets with the other spouse’s written consent, or act under a court order.

Keep records of what you spend and why. When maintenance or support is at issue, each spouse’s sworn statement of net worth must list all assets transferred in any manner during the preceding three years or the length of the marriage, whichever is shorter (DRL § 236(B)(4)(a)).

What automatic orders do not cover

The automatic orders deal with property, debt, insurance and notice of financial threats. They say nothing about where the children live, which school they attend, or parenting time. Limits of that kind come from a custody order, a written agreement or a separate request to the court; see our guide to relocation and the Tropea standard.

The orders also do not decide who ends up with what. The final division comes later, under the rules in our guide to equitable distribution in New York.

How to change an automatic order or get permission to act

• Consent or agreement. The property and retirement-account orders allow a transfer the other spouse consents to in writing. To end or change an order more broadly, the statute requires a written agreement that is “duly executed and acknowledged,” meaning signed and acknowledged before a notary or other officer authorized to take acknowledgments.
• Court order. Either spouse can make a motion asking the court to terminate, modify or amend an order. The statute does not list specific grounds; the court decides on the facts presented.

For example, if both spouses agree that money in a joint account should pay for a necessary repair to the home, a short written consent signed by both can cover that transfer. If the other spouse refuses and the need is real, asking the court first is safer than acting first.

What happens if a spouse violates the automatic orders?

The court rule states: “The failure to obey these automatic orders may be deemed a contempt of court” (22 NYCRR 202.16-a(c)(8)). Civil contempt is a finding that a party disobeyed a court order in a way that prejudiced the other party’s rights.

Contempt is not automatic. The spouse seeking it must prove by clear and convincing evidence that a lawful order clearly expressing an unequivocal mandate was in effect, that it was disobeyed, that the other spouse knew of it, and that the violation prejudiced a party’s rights (El-Dehdan v. El-Dehdan, 26 N.Y.3d 19 (2015)). Willfulness is not required.

Under Judiciary Law § 753, a court may punish civil contempt by a fine, imprisonment, or both. Separately, two of the factors a court weighs in dividing marital property are “the wasteful dissipation of assets by either spouse” and “any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration” (DRL § 236(B)(5)(d)(12)–(13)).

If you believe your spouse has violated an order, keep the records that show what happened and when, and raise it with your lawyer promptly rather than responding in kind.

Other notices served at the start of a divorce

• Notice Concerning Continuation of Health Care Coverage. Under DRL § 255, before signing a judgment of divorce or separation, the court must confirm that both parties were notified that afterward a party “may or may not be eligible to be covered under the other party’s health insurance plan, depending on the terms of the plan.” Serving this notice with the summons is sufficient notice to a defendant who defaults. The fourth automatic order keeps coverage in place during the case; DRL § 255 addresses what may happen after the judgment.
• Notice of Guideline Maintenance. In a divorce started on or after January 25, 2016, this notice is required under the 2015 maintenance guidelines law (Ch. 269, L. 2015), and the court system’s instructions direct the plaintiff to serve it with the summons. See our guide to the maintenance income cap.

Frequently Asked Questions

When do automatic orders take effect in a New York divorce?

They bind the spouse who files as soon as the summons, or summons and complaint, is filed. They bind the other spouse once he or she is served with the automatic orders together with the summons. They last until the judgment of divorce is entered or the case is dismissed, discontinued or stayed, unless a court order or a signed and acknowledged written agreement changes them.

Can I pay my bills and my divorce lawyer after the case is filed?

Generally, yes. The automatic orders allow spending for customary and usual household expenses, in the usual course of business, and for reasonable attorney’s fees in connection with the divorce. Those exceptions do not extend to retirement accounts, so withdrawing from an IRA or 401(k) to pay a lawyer or living costs requires your spouse’s written consent or a court order.

Can I take money out of my 401(k) during a New York divorce?

Not without your spouse’s written consent or a court order. The automatic orders bar transferring, withdrawing or otherwise disposing of assets in IRAs, 401(k)s, Keogh accounts and other pension or retirement accounts, and they bar applying for retirement benefits or annuity payments. A spouse who is already in pay status may keep receiving those payments.

Do the automatic orders stop me from moving with my children?

Not by themselves. The automatic orders cover property, debt, insurance and notice of financial events, not where children live. A move can still be limited by a custody order, a written agreement or a court order, and a disputed move is decided under the best-interests standard of Tropea v. Tropea, so speak with a lawyer before relocating with children while a case is pending.

What happens if my spouse violates the automatic orders?

You can ask the court to enforce them. The court rule warns that failure to obey the orders may be deemed a contempt of court, which requires clear and convincing proof that a clear order was disobeyed by someone who knew of it, prejudicing your rights. Wasteful dissipation and transfers made in contemplation of divorce without fair consideration are also factors when the court divides marital property.

Automatic orders apply from the first day of the case, so it helps to get advice before moving money, changing coverage or signing anything. Joel Yacoob handles contested and high-net-worth divorces and uncontested divorces for Neuhaus & Yacoob. You can start your case online or call (718) 975-1123.

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This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. The law changes and every situation is different; consult a lawyer about your own circumstances.