Even for those who have determined that their marriage is no longer working, the choice to get a divorce is often a difficult one. After a person decides to take action to begin the divorce process, they may not fully realize the procedures they will need to follow, the requirements they will need to meet, and the restrictions that will apply to them. One issue that can sometimes catch spouses by surprise after they file for divorce is the automatic court orders (sometimes known as temporary restraining orders or TROs) that go into effect after filing a divorce petition. By understanding the restrictions that these orders will place on both spouses, a person can be prepared to properly address the financial issues involved in the end of their marriage.

Automatic Orders in New York Divorce Cases

Under New York’s Domestic Relations Law § 236, Part B, Section 2, certain types of automatic orders go into effect after a spouse files a petition for divorce and the petition is served to the other spouse. These orders include:

• A prohibition on selling, transferring, or concealing property - Neither spouse is allowed to dispose of any property they own jointly or separately, including by selling assets, transferring them into the control of other parties, or hiding them from their spouse so that certain items will not be included in the equitable distribution of marital property. Applicable property may include personal belongings, real estate, financial accounts, stocks, or vehicles. Spouses are permitted to conduct transactions that are part of their usual course of business, and they can use the assets they own to pay standard household expenses and attorney’s fees.

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For people who have significant debts, bankruptcy may be the best option for addressing their financial issues and ensuring that they will be able to meet their ongoing needs. Bankruptcy is a form of debt relief that is available to all Americans, and it may allow multiple different types of debt to be discharged, meaning that a debtor will not be required to repay the amounts owed, and creditors cannot take any actions to collect money from a debtor. Multiple different types of debts may be discharged through bankruptcy, including credit cards and medical bills. Secured debts such as a home mortgage or auto loan may also be discharged, although this will typically result in a foreclosure or the repossession of property. However, debtors should be aware of different types of debts that cannot be discharged through bankruptcy. These include:

• Domestic support obligations - If a person is required to pay child support to ensure that their children’s needs will be met, or if they were ordered to pay spousal maintenance (alimony) following their divorce, these obligations will remain in place. In addition to making ongoing payments as required, a person will be required to make up any payments that have been missed, and interest may be charged for these past-due amounts. While bankruptcy cannot eliminate these obligations, it may provide a person with funds that would otherwise have been used to pay off other debts, ensuring that they can meet their ongoing requirements.

• Most tax debts - If a person owes money to the IRS, they will usually only be able to discharge debts from at least three years before they filed for bankruptcy. Failure to file tax returns on time may disqualify these debts from being discharged.

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Few people expect to get a divorce when they are getting married and planning for a future with their partner. Considering a possible divorce in the midst of these plans can not only seem unproductive, but it may be downright offensive to a couple and their family members. However, the fact remains that a significant percentage of marriages do not last, so making plans for this possibility can often be a good idea. A prenuptial agreement that details how certain matters will be handled in the case of divorce may even strengthen a couple’s bond by giving them a reason to fight to keep their relationship strong. 

Terms That Can Be Included in a Prenup

A prenuptial agreement, which is commonly known as a “prenup,” is a legal agreement between a couple who plans to get married. A prenup is treated the same as a contract, and the parties will be bound to its terms in specific circumstances. Typically, a prenup will detail how certain issues will be handled if the couple’s marriage ends, including if they get a divorce, if they choose to legally separate, or if one spouse dies. 

A prenup can generally include decisions related to: