You and your spouse signed a separation agreement but now your spouse refuses to comply with the terms of the agreement. Even worse, your spouse is now living in another country. How can you enforce your rights?
What Is a Separation Agreement?
A separation agreement is a signed contract between both spouses that states they will live separate and apart and addresses the couple’s financial and custody matters. This includes division of marital property, responsibilities for bills, spousal and child support, child custody, parenting time, health insurance and any other pertinent issues.
After the passage of a year, to the extent the couple has not filed for divorce, either party can convert a separation agreement into a divorce under New York law.
How Can You Enforce a Separation Agreement?
If your spouse breaches the agreement, you can go to court to enforce it like you would any other contract. One of you need only be a resident of New York to be able to enforce it in New York.
You can commence enforcement in one of two ways. The first is to file a post-judgment motion in the action to which the divorce was granted. This is generally the more efficient way to proceed since the motion will likely be assigned to the same judge who heard the underlying divorce absent certain circumstances.
Alternatively, you can start a new action to enforce the agreement by filing a complaint with the court and serve those papers on your spouse who must respond within 20-30 days depending upon how service was effected. If your spouse doesn’t respond, you can get a default judgment. Once you obtain a judgment, it can be filed and enforced in any county where your spouse has property that can be seized. However, keep in mind that if the property is located out of state, you will have to first obtain recognition of the New York judgment in that state before the judgment will be recognized for enforcement by the county clerk.
What Happens If Your Spouse Lives Outside the U.S.?
The court cannot issue a judgment unless it has jurisdiction over the defendant. If your spouse lives outside the U.S., you must serve your spouse in the other country.
If your spouse lives in a country that accepts the Hague Convention on the Recognition of Divorces and Legal Separations, there is a formal process that allows you to serve your spouse. While it can be a costly and time-consuming process, at least it provides an option. Unfortunately, if the country does not accept the Hague Convention, it will likely be difficult if not impossible to serve your spouse.
Does Your Spouse Have Assets That Can Be Seized to Pay You?
Before you even decide to go to court, however, you should consider whether your spouse has sufficient assets to pay any judgment you obtain. A court action is expensive and time-consuming. If your spouse has insufficient income and assets to satisfy a judgment, it may not be worth it to go to court.
What Should You Do?
In the end, the decision is personal to you as to whether you proceed to enforce your separation agreement. There are many things to consider that you should discuss with competent counsel before proceeding to ensure, as much as possible, that you are not throwing good money after bad. If you need to enforce a judgment or defend against one, contact us to discuss your situation and help you determine the best option for you.
