Can a Judgment Be Enforced Against a Party in a Pending Divorce Case?

The short answer is yes, a judgment creditor may enforce a judgment against property in which his judgment debtor has an interest, but there are a few nuances and areas of concern.

First, the general rule. Before a divorce judgment is entered,¹ a judgment creditor of one spouse can enforce a judgment against any property in which the judgment debtor spouse has an interest, which includes marital property potentially subject to equitable distribution. See Pensmore Invs., LLC v. Gruppo, Levey & Co., 2015 N.Y. Misc. LEXIS 1403, *6-9 (Sup. Ct. N.Y. County 2015) (“in an enforcement proceeding prior to the entry of a final judgment of divorce, a creditor may procure the turnover of a judgment debtor’s assets, even where the debtor’s spouse asserts a claim in the divorce proceedings that the subject property should be deemed marital property”) (collecting cases), modified on other grounds, 137 A.D.3d 558 (1^st Dep’t 2016). As explained in Pensmore, only property in which the judgment debtor has no interest—that is, separate property of the other spouse—is exempt from judgment enforcement.

The so-called “Automatic Order” entered upon case commencement by the matrimonial court, a standing order established by rule (22 NYCRR 202.16-a) and applicable in every matrimonial case, restricts the parties to the matrimonial action from transferring assets during the pendency of the proceedings, but should not be a bar to judgment enforcement. By its terms, the Automatic Order imposes an injunction against the parties to a divorce case, enforceable by contempt. Nothing purports to make the injunction applicable to creditors and there is nothing in the Order or rules staying judgment enforcement against either party.

Nor does the “Automatic Order” exempt property from enforcement by altering its status as “property that could be assigned or transferred,” CPLR 5201(b). The property is capable of being assigned or transferred even thought the judgment debtor spouse is himself presently enjoined from doing so. Transfer of his interests will be done by normal judicial process, which is allowed to proceed against a judgment debtor involved in a matrimonial case, not by any act of the judgment debtor himself.

Note that priority is given by statute to one debt than can arise in a domestic relations matter: a levy to recover documented child support arrears. See CPLR 5234(b). Priority issues regarding other debts arising in a matrimonial case, for example, maintenance arrears, are governed by normal judgment priority rules. See CPLR 5234 (personal property); CPLR 5236(g) (real property).

1 See Hallsville Capital, S.A. v. Dobrish, 87 A.D.3d 933, 934 (1^st Dep’t 2011) (“A mere judicial declaration of equitable distribution, without entry, cannot give a spouse an interest in property superior to that of a creditor…holding a valid judgment lien”).