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In a Divorce Action Couple Deals with Mortgage Payments

In a matrimonial action, the plaintiff wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County, as directed her to delete the last paragraph from a proposed mortgage note and paragraph 20 from a proposed mortgage which were to be executed by plaintiff in connection with a transfer of defendant’s interest in the former marital residence.

A New York Family Lawyer said that the parties herein were married sometime in 1972, and have two children, presently aged 10 and 8, respectively. Marital difficulties arose thereafter and in 1981, plaintiff served a summons and complaint upon defendant seeking a divorce on the ground of cruel and inhuman treatment. Defendant interposed a counterclaim for divorce based upon constructive abandonment.

At an inquest conducted, a stipulation was entered into regarding the distribution of marital property, and child support.

Thereafter, a New York Custody Lawyer said a judgment of divorce was granted to each of the parties. It provided, inter alia, that the stipulation placed on the record shall survive and shall not be merged in the judgment.

Later, plaintiff moved by order to show cause to compel transfer of title of the marital home to her. By order, Special Term held, inter alia, that tender by plaintiff of the requisite bond and mortgage, defendant shall deliver a conveyance of his interest in the marital premises.

A dispute subsequently arose between the parties regarding the language in the mortgage and mortgage note tendered by plaintiff to defendant. Thereafter plaintiff moved to punish defendant for contempt in violating the prior court order. The Special Term denied the motion and directed that plaintiff “execute a new mortgage note and mortgage which shall comply with the provisions of the stipulation, the Judgment of Divorce and the order of the Court, and said instruments shall not include any special provisions not included in the stipulation, Judgment and order.

Plaintiff then tendered a proposed mortgage note and mortgage to defendant. A Nassau County Family Lawyer said due to defendant’s objection to this language in the mortgage and mortgage note, plaintiff again found it necessary to move for an order punishing him for contempt in failing to comply with the prior court orders. In a supporting affidavit, plaintiff argued, inter alia, that since the conveyance of the former marital premises was part of the stipulation of settlement of the divorce action, it was incumbent upon her to refer to the stipulation of settlement in the mortgage and mortgage note. Plaintiff further argued that the stipulation of settlement provided that in the event of defendant’s default in payment of child support, she was to credit the amounts not paid against the amount due on the mortgage.

In opposition to plaintiff’s motion, defendant argued, inter alia, that mortgage and mortgage note should comply to standard banking and real estate practices all covenants should be stated without reference to other documents.

By order, Special Term directed, inter alia, that (1) defendant execute and deliver to plaintiff a deed of his interest in the marital premises and (2) plaintiff execute a mortgage note and mortgage “as annexed to the Show Cause Order, deleting from said mortgage note, the last paragraph and from the mortgage, paragraph 20”.

A Nassau County Custody Lawyer said the special Term erred in directing plaintiff to delete the last paragraph from the proposed mortgage note of the proposed mortgage. These provisions contained references to the divorce judgment, and the stipulation of settlement entered into. The stipulation of settlement, which is referred to in the divorce judgment, reflects an express agreement between the parties that in the event of defendant’s default in payments of child support, plaintiff could credit such unpaid amount of child support against her mortgage payment obligations. Since any default by defendant in his child support payments would alter and reduce plaintiff’s obligation under the mortgage not only to the defendant, but to any assignee or transferee of the mortgage and note, it is proper for plaintiff, in an attempt to fully protect her interests, to insert references in the proposed mortgage and mortgage note to (1) the stipulation of settlement, (2) the divorce judgment and (3) the provisions therein which allow her to reduce her monthly payment in the event defendant defaults in his monthly child support payment.

Accordingly, both parties are directed to execute all the necessary documents to accomplish the result directed herein.

Finally, it appears that plaintiff has an application pending in the Supreme Court, Suffolk County seeking a money judgment against defendant for arrears in child support.

When a divorce judgment was issued, the children of the divorced parties should not be left behind. Here in Stephen Bilkis and Associates, our Suffolk County child support attorneys will help you demand for support. Through our Suffolk County divorce attorneys, an advice as regards incompatibilities between spouses will be given upon your request. Contact us now for more inquiries.

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