Cutting the Credit Card Off During the Pendency of a Divorce: A Violation of the Automatic Orders?
The Automatic Orders are a set of directives that automatically go into place at the beginning of every divorce action in New York. The Automatic Orders restrain the parties from engaging in financial transactions out of the ordinary course. A puzzling question is whether one spouse cutting off the other spouse’s credit cards constitutes a violation of the Automatic Orders.
Each family and their financial circumstances are different. In many families, one spouse controls all of the finances. The monied spouse controls the income and bank accounts; the other spouse’s only access to marital funds is through use of a credit card. Under these circumstances, if the monied spouse cancels the credit cards during the pendency of divorce, the other’s access to finances will be completely cut off.
“The express purpose of the automatic orders is to preserve the status quo of property individually or jointly held by the parties” during the pendency of a matrimonial action. Spencer v. Spencer, 159 A.D.3d 174, 181 (2d Dep’t 2018); see also Finkelstein v. Finkelstein, 162 A.D.3d 401, 403 (1st Dep’t 2018) (explaining that party did not violate automatic orders by “seeking to maintain the status quo” during the pendency of matrimonial action).
Clearly, the statutory purpose of the Automatic Orders—to maintain the status quo—is served by prohibiting the cancellation of marital credit cards.
However, the plain terms of the Automatic Orders do not explicitly proscribe credit card cancellations. Specifically, the Automatic Orders direct, among other things:
“Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property . . . , except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action.”
“Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts . . . ; except that any party who is already in pay status may continue to receive such payments thereunder.”
"Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action.”
See DRL § 236(B)(2)(b); 22 N.Y.C.R.R. § 202.16-a(c). Nowhere is the Automatic Orders does it expressly state that credit cards must not be cancelled during the pendency of a divorce.
There are, however, innovative arguments that can be made to establish that the cancellation of a credit card during the pendency of a divorce does, in fact, violate the Automatic Orders. Specifically, the Automatic Orders prohibit the removal or disposition of “any property.” Under the General Construction Law, “personal property” is broadly defined as “everything, except real property, which may be the subject of ownership.” See General Construction Law § 39. A credit card falls within the commonly understood meaning of “property” which is “[t]hat dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects,” as well as “[t]he exclusive right of possessing, enjoying, and disposing of a thing.” Black’s Law Dictionary 1216 (6th ed. 1990).
When interpreting statutory meaning, courts frequently examine how the Legislature has utilized the same terms in other statutes. See, e.g., Belmonte v. Snashall, 2 N.Y.3d 560, 566 (2004) (interpreting the meaning of the term “board certified” based upon how the “Legislature has also used the term . . . in other statutes”). Notably, other New York statutes explicitly refer to a credit card as property. For example, the Penal Law provides that “A person is guilty of grand larceny in the fourth degree when he steals property and when . . . The property consists of a credit card or debit card.” Penal Law § 155.30 ; see also In re Reinaldo O., 250 A.D.2d 502 (1st Dep’t 1998) (holding that use of stolen credit card constitutes an appropriation of property). Following this logic, the cancellation of a credit card clearly violates the provision of the Automatic Orders prohibiting the disposal of property during the divorce.
In prior cases, Andrew T. Coyle has successfully argued that the cancellation of a credit card constitutes a violation of the Automatic Orders. If your spouse has improperly cancelled your credit cards, the Law Offices of Andrew T. Coyle is well equipped to seek redress from the Court.