Legal Memorandum: Show Cause Order in a Divorce Action in NY

Issue: Under New York law, when will an order to show cause be issued in a divorce action to compel the return of the separate property of one spouse?

Area of Law: Family Law
Keywords: Divorce action; Order to show cause; Return of spouse's separate property
Jurisdiction: New York
Cited Cases: 83 A.D.2d 847; 151 A.D.2d 911; 87 A.D.2d 782; 542 N.Y.S.2d 884; 436 N.Y.S.2d 979; 496 N.Y.S.2d 633; 139 A.D.2d 506; 441 N.Y.S.2d 749; 109 A.D.2d 1004; 93 A.D.2d 535; 87 A.D.2d 588; 450 N.Y.S.2d 369; 142 A.D.2d 543; 115 A.D.2d 335; 496 N.Y.S.2d 311; 486 N.Y.S.2d 483; 437 N.Y.S.2d 258; 85 A.D.2d 622; 400 N.Y.S.2d 423
Cited Statutes: N.Y. Dom. Rel. Law art. 13, § 234
Date: 09/01/2004

Orders to show cause are authorized by article 13, § 234 of the New York Domestic Relations Law.  The viability of a Motion for an Order to Show Cause in connection with seeking the return of personal property in a marital-dissolution action is established in Holmes v. Holmes, 151 A.D.2d 911, 542 N.Y.S.2d 884 (3d Dep’t 1989), in which the plaintiff husband asked the court for an order prohibiting defendant wife from disposing of marital assets.  His motion was brought on by an order to show cause, and was granted by the trial court.

The court is vested with broad and flexible power to control the possession of property between spouses.  See St. Angelo v. St. Angelo, 130 Misc. 2d 583, 496 N.Y.S.2d 633 (Sup. Ct. Suffolk County 1985).  The applicable statute provides: 

In any action for divorce, for a separation, for an annulment or to declare the nullity of a void marriage, the court may (1) determine any question as to the title to property arising between the parties, and (2) make such direction, between the parties, concerning the possession of property, as in the court’s discretion justice requires having regard to the circumstances of the case and of the respective parties.  Such direction may be made in the final judgment, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and […]

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