What if My Spouse Refuses to Leave?
Jun 12, 2024 | Written by: | Share
In a recent appeal, the NJ Appellate Division addressed when a court order, in this case a Final Judgment of Divorce, requires a litigant to vacate and sell a home, and the enforceability of same. Although unpublished, this opinion is interesting and relevant, and it details (and affirms) the powers of a trial court judge to provide relief when a former spouse refuses to cooperate with the sale of a home, incident to a divorce.
The case discussed herein is Yan v. Xu. In pertinent part, the parties’ Final Judgment of Divorce (FJOD) provided: “the Property shall be immediately listed for sale. Defendant is responsible for all repairs and cleaning as may [be] recommended by the listing agent for the proper marketing of the [P]roperty, to be deducted from his share of the net proceeds of sale. Defendant shall cooperate with the cleaning of and repairs to the home and with the listing of the home for sale. The parties shall mutually agree upon a listing agent. In the event they cannot agree, either party may file an appropriate application to the court. If either party must file an application with the court to compel performance in accordance with this provision, counsel fees may be awarded in connection with any such application upon a finding that the other party was non-cooperative or unreasonable.”
After the entry of the Judgment, the defendant, in this case the husband, refused to leave the home and continued to refuse to cooperate with the agreement to sell the house.
When the defendant repeatedly refused to vacate the Property and failed to cooperate in effectuating its court-ordered sale, the plaintiff filed numerous enforcement applications, which ultimately led to the entry of a March 10, 2022 order adjudicating the defendant in violation of litigant's rights for failure to abide by the FJOD requiring the sale of the Property.
Because of the defendant's failure to cooperate with the sale, the plaintiff was appointed attorney-in-fact to immediately list the Property for sale, interface with realtors, accomplish necessary cleaning and repairs, and execute any documents required in the process. The defendant was also ordered to cooperate with the sale of the Property and allow the realtor, along with the plaintiff, to enter the Property on forty-eight hours' notice.
The March 10 order required the defendant to vacate the Property by April 9, 2022. However, when the defendant again failed to vacate the Property as ordered, the plaintiff filed an order to show cause (OTSC) seeking enforcement of the March 10, 2022 order.
After finding the defendant had not complied with court orders on yet another occasion and the Property still had not been sold, Judge Gallina-Mecca again adjudicated the defendant in violation of litigant's rights and entered a May 10, 2022 order requiring the defendant to vacate the Property by May 20.
The plaintiff was again appointed attorney-in-fact to execute the contract and all documents necessary to effectuate the sale of the Property based on the defendant's non-compliance. She was also given the sole authority to make all decisions regarding the sale, including determining the ultimate sale price.
Judge Gallina-Mecca found the defendant had approached the court with unclean hands, since he had not complied with the prior court orders. When the defendant still refused to vacate the Property, Judge Gallina-Mecca issued writs of possession on May 31 and June 10, 2022.
Despite great efforts by the defendant in this case, who sought appeal of the orders along the way of the aforementioned process, and who obfuscated the sale, the sale did ultimately proceed and the Appellate Division upheld the trial court’s rulings.
This decision demonstrates the great discretion a court has to compel one to cooperate. And in the event a litigant is uncooperative, particularly repeatedly as was the case here, a court can appoint the other party or even a third party to act, handle the sale, etc. A former spouse can give be given a power of attorney or other legal authority to act on behalf of the non-cooperating party, and even counsel fees and damages may be considered against the non-cooperating party.
Final judgments of divorce, like any other court orders, have great weight and there is an expectation that same will be enforced. A failure to abide by a court order, particularly purposefully and continuously, as the defendant here appears to have acted, can have significant negative consequences.
It is critical to understand the terms of a contract (including a divorce agreement) before signing. These contracts have significant consequences and repercussions for a failure to comply that should not be taken lightly.
In this specific case, even though the defendant ultimately cooperated and vacated, and the home was sold, the Appellate Division still considered the appeal, taking the opportunity to address the defendant’s obfuscation. This is a meaningful consideration for attorneys and litigants in practice.
Diana N. Fredericks, Esq., devotes her practice solely to family law matters. She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters from 2015 through 2022, to the NJ Super Lawyers list in 2023 and 2024, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.