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A judge ruled against me regarding my compliance with a

post-matrimonial agreement stating that I...
A judge ruled against me regarding my compliance with a post-matrimonial agreement stating that I would vacate a residence if I cohabitated with another adult, which the agreement defined as marriage if we habitually lived together 60 out of any 90 day period. The judgement was based upon testimony I gave during custody trial that I was living with someone, but the actual time spent together was never defined, still the judgement was made and I have planned to appeal the decision. I have just received a "notice of settlement" from my ex-spouses attorney indicating that they are going to ask that an order of eviction be sighed by the judge before an actual judgement has been filed that I am able to respond to. They included the transcript containing the judge's decision, but not actual decision document. I have not yet seen the actual decision. Also included was the blank demand for eviction that they plan to have signed to dispatch marshals. Are they able to do this prior to an actual judgement being filed and giving me the opportunity to appeal?
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Answered in 6 minutes by:
10/13/2017
Lucy, Esq.
Lucy, Esq., Attorney
Category: Landlord-Tenant
Satisfied Customers: 30,597
Experience: Attorney
Verified

Hi,

I'm Lucy, and I'd be happy to answer your questions today. I'm sorry to hear that this happened.

Once the judge has ruled that you're living with someone else, that's enough for them to proceed with the eviction. They're not required to wait to see if you file an appeal. You may want to look at the original agreement to see if it gives you any sort of moving out period.

With that said, they need a court order to remove you from the premises. The sheriff won't just show up and remove you without one. So, unless the judge ordered you to vacate in his ruling, there will have to be another court proceeding.

You're allowed to file a Motion to Stay in the trial court at the same time you file the Notice of Appeal. If you can show that being required to move will cause you irreparable harm, the judge might grant it. However, you must also show a high likelihood of success on the merits. That could be difficult when you admitted to living with someone else. Your admission takes away his need to prove that you shared a residence for 60 days in a 90 day period.

If you have any questions or concerns about my response, please reply WITHOUT RATING. It's important that you are 100% satisfied with my courtesy and professionalism. Otherwise, please rate my service positively so I am paid for the time I spend answering questions. If you are on a mobile device, you may need to scroll to the right. There is no charge for follow-up questions. Thank you.

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Customer reply replied 1 month ago
How much time will I have after the order is signed by a judge?

That largely depends on the agreement you signed and whether it gives you time to vacate once you start living with someone else. If it doesn't, you could be required to leave within 24-72 hours after the judge enters an eviction order against you.

In some areas, the sheriff won't remove people on Sundays, so you may want to call and ask your local sheriff about that.

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Customer reply replied 1 month ago
Lucy, apologies. I needed another piece of information for this question and need to find/review a document. In the process of entering this arrangement with my ex, there was a lease application that was required by the condominium, and demanded by my ex, which I signed and returned. The application required that specific lease terms be included in the lease I entered with my ex. My ex never sent me a lease, so the only agreement we have is the settlement agreement. A copy of the lease application was probably signed and returned to the condominium by my ex, but I don't know this for certain. The application gives the condominium certain rights to liens if my ex stops paying condominium fees, including eviction of tenants. I suppose they will show the judges order for eviction, which is issued by a family court judge. What does it mean in this situation if I was never given a condominium mandatory lease defining the terms of our agreement? Does housing court ever get involved in this situation, or can my ex simply jump straight to the marshal? Also, this notice of default and added pressure is being done during a time when several appeals have been filed in our family court case which are still pending and would be harmful to them. If I agree to a settlement they will give me more time, but it isn't clear to me what rights I have in this situation, so I'm not sure that anything they offer me is any better than what is already available to me. I'm concerned this is intimidation to force an unfair settlement.

A tenant can never be lawfully evicted without a court order. It doesn't matter what paperwork you have or what you signed. The law offers protection to stop people from being removed from their homes. The sheriff should refuse to act without an order signed by a judge.

It's possible they're trying to force an unfair settlement, but you can let them know that if they manage to remove you without getting an appropriate court order first, you'll sue for damages (on top of whatever else you're requesting). He's not allowed to just throw you out of your home.

Please rate my answer positively to ensure I get credit for the time I spend helping. If you are on a mobile device, you may need to scroll to the right. Thank you.

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Customer reply replied 1 month ago
My ex's attorney has a eviction decision from a family court judge based upon the settlement agreement. The attorney has sent me a copy of the eviction order they plan to bring to the judge to sign using the court transcript as the order document. Included in the blank eviction notice they sent, is the blank request for the actual eviction they are saying they will then ask of the marshals when they have the signed eviction notice in hand. The attorney wants to know if I am willing to settle before he gets the order signed by the judge. I don't have a lease and the attorney is making it sound like he can get all of this done in days if I don't agree to a settlement.

The term "lease" does not require a written document. If you're staying with your husband's consent, you're considered his tenant. And that means you're entitled to legal notice before being asked to leave. Family court and landlord/tenant court are not the same thing. A family court judge can rule that you are cohabitating with a new partner, but he shouldn't be able to evict you without notice.

Negotiating with them will save you the stress of wondering if they're going to find a way to have you thrown out. It could also save you the trauma of an illegal eviction. You CAN negotiate with them, especially if you know you have things they want.

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Customer reply replied 1 month ago
That's what the eviction notice they are going to the judge with. It's the order to evict that they will take to the marshal. The family court order first states the order of eviction, the second document orders the marshal to "immediately" evict. There is no notice indicated in either document.

Notice is before the first court action is filed. It wouldn't be in the final writ of eviction. That's usually served within a few days.

If they're taking it in to the judge right away, then the only thing you can do is file a Motion to Stay based on the fact that you intend to appeal but can't until the judgment is entered.

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Customer reply replied 1 month ago
To be clear, the family court can order the eviction, the eviction can be immediately demanded and landlord/tenant court never needs to be involved. Also a lease, even if stipulated by the condo, never needs to be supplied. I keep hearing that it's difficult to evict a tenant in NY, but this sounds like they have a clear path to expediting this based upon the settlement agreement. Is this all accurate?

That is accurate. The settlement agreement makes it easier, if there isn't a provision in there requiring them to give you notice before filing the original lawsuit.

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Customer reply replied 1 month ago
Wow, bypasses all NY housing court law? Even implied terms of a lease?

From the very beginning, I've been saying that's not possible. Go back up and read my original answers.

But you said that they DID get an eviction order. And there are circumstances where a person can file for an immediate eviction. Usually, that's when someone is destroying the leased premises or doing drugs there, but there isn't a landlord/tenant statute that addresses this.

My original statement was that they need to take the judge's finding showing that you're now cohabiting with someone else to the eviction court and file for eviction on that basis. You have spent 3 days telling me that you disagree with that assessment, so I'm trying to come up with another way of looking at it.

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Customer reply replied 1 month ago
I seem to have missed a pivot somewhere. So the family court judges decision needs to be taken to a housing court judge? Housing court has not been involved at all at this point. They are making it seem that they can take the family court judge's decision straight to the marshals. Am I missing a step in my understanding?

They should be required to go to the housing court. A family judge can order you to leave. They can hold you in contempt of court if you don't - which could mean fines or other penalties. Theoretically, the judge could order you to pay what you would've spent on a hotel or something.

But the actual writ of execution that authorizes the sheriff to remove you should be signed by a housing court judge, not a family court judge.

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Customer reply replied 1 month ago
Does that "should" mean that they are missing a step in their threat, or that the marshals can honor a family court judge's order?

In my opinion, they're missing a step. But it's possible there is language in the settlement agreement that says otherwise, because I haven't read it.

Lucy, Esq.
Lucy, Esq., Attorney
Category: Landlord-Tenant
Satisfied Customers: 30,597
Experience: Attorney
Verified
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Lucy, Esq.
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Lucy, Esq., Attorney
Category: Landlord-Tenant
Satisfied Customers: 30,597
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