You endured the stresses and difficulties of divorce proceedings and fought to ensure that you got the alimony you felt you deserved. But your ex is now simply ignoring the requirement and not making their payments to you. What can you do? Here are the steps you need to follow to ensure you get the alimony you deserve.
Find the Order for Alimony
First, you need to ensure that you have an order signed by the judge that requires your ex to pay your alimony or spousal support. If you’re not sure where to find this order, speak to your divorce attorney; they should be able to help you locate it. Then, you need to review the order to verify the amount they are required to pay and when they are required to pay it. Once you can prove that your ex is required to make those alimony payments, you can move forward.
Collect Records Proving Non-PaymentAsk the Court to Enforce the Order
Once you have the documents needed to prove non-payment of your alimony, it’s time to work with a divorce attorney and ask the court to enforce the order for alimony payment. This requires asking the court to reopen your closed divorce case. To do this, you will need to either file a Motion for Enforcement. This is essentially the court ordering your ex to follow through with the payments as previously directed. This order needs to be delivered to your ex, which can typically be done with a process server.
Hold Your Ex in Contempt
If the Motion for Enforcement is ignored, you’re not out of options yet. Your next step would be to ask the court to hold your ex in contempt. First, you would file a Motion for Contempt; another option is to ask the court to file an Order to Show Cause. Both of these options force your ex to show up in court to defend their reasons for failing to pay your alimony. Again, you’ll need to make sure that these orders are properly served to your ex, so they can show up to the court at the appointed date and time.
Ask for a Warrant
When you ask the court to hold your ex in contempt, you can also ask them to issue a warrant for their arrest, should they miss the court date or continue missing alimony payments. Or, you can choose to take this step later on. For example, if your ex shows up to the court date, pays what they owe in alimony, then resumes missing payment, you may choose to ask for a warrant to be issued at that point. This can often drive the point home for your ex that missing their alimony payments is breaking the law.
Ask for an Income Withholding Order or Garnishment
If your ex has a habit of not making their alimony payments, you can circumvent them altogether and ask for an income withholding order. If it is approved, your ex’s employer will automatically withhold your alimony from their paycheck.
This process usually takes four to six weeks, but once it’s been implemented, you will no longer have to worry about fighting your ex to get your alimony payments.
You can also ask for their wages to be garnished. This is similar to an income withholding order, but can only be used to collect future payments, and not past-due ones. However, garnishment is taken directly from their bank account, so if they have income that does not come from a paycheck, a garnishment can take your share of these funds directly from their bank account.
Make Sure You Have A Child Support Order
The first step to making your ex pay support is to have an order signed by a Judge that requires payment to the custodial parent. Until you have an order, you don’t have a requirement. Without a requirement to pay, you are simply hoping for the good graces of your ex. And that is no way to live.
Have an order? Good. Now go back and review the child support orders to make sure that it is indeed child support or alimony that is ordered, and that unpaid child support is past due. Assuming payment is past due and you, therefore, have an ex that is violating a judicial order, it’s time to gather evidence to prove your point.
Gather Records That Prove Non-Payment.
Now you want to gather the proof that your ex is failing to pay. This is usually easy to do as your ex should be paying by check or money order, transfer to a bank account, an income withholding order, or depositing money with Utah. If your ex pays by check or money order, you will want to go online and pull records from your bank that show that the child support payment has not been deposited into your account. You can do this by pulling bank records for the time period in question. Deposits for most banks are listed at the top of each monthly statement, and a quick review of records can prove that payment was not made.
If needed, don’t be afraid to pull cancelled checks. Remember, your goal should be to get your ex to pay child support now and, with any luck, pay in the future. Before you go see a lawyer, you want to make sure you have gathered exactly what the lawyer needs.
Ask The Court For The Child Support Enforcement Order Or Hold Your Ex In Contempt Of Court.
Now it is time to ask the Court to enforce child support and possibly hold your ex in contempt of court. Often this is done through a family law attorney. But whether you go it alone or with a lawyer’s help, you are going to be filing a pleading with the clerk of the court to re-open your closed case. As a technical matter, you can make these requests with a Motion for Enforcement, a Motion for Contempt, or a Motion for Order to Show Cause. In both cases, you are asking the Court to use its powers to fix the problem.
A Motion for Enforcement is the nicest option. Your remedy is straightforward you want the problem fixed and you want your ex to comply with the Court’s directives.
In a Motion for Contempt, you are taking it up a notch. You are asking the Court to not only make your ex comply, but also hold your ex in contempt. The purpose of contempt is to compel compliance with a court order or compensate you because your ex is not doing what he or she is supposed to do. You can even request the Court put your ex in jail if he or she does not pay the amount required.
An Order to Show Cause is the same idea, but the request comes from the Court instead of from you. You ask the Court to issue an Order to Show Cause, and the Court signs the order, commanding your ex to come to Court and “Show Cause” regarding why he or she is thumbing his or her nose at the court. Once a motion is filed, you need to get it to your ex. This can be done by traditional service of process with a process server, but it is not necessary.
Finally, you will call the Judge and get available dates and times to present your case to him or her. At the hearing, you present evidence to the Judge proving your case. Your attorney has the ability not only to give legal advice, but also to cross-examine your ex and ask him or her questions related to the failure to pay child support or alimony. If everything goes well, the Judge should then order your spouse to comply. The Judge will often order the ex to pay X amount of money within Y amount of time. To really drive home the point, the Judge could order that a warrant be issued for the arrest of your ex if payment is not made by a certain date. Also, the Judge has the ability to order your ex to pay a fine and attorney’s fees to you for having to hire a lawyer to fix the problem. Sometimes your ex learns his or her lesson, and the problem never happens again. But sometimes it is clear that this is going to be an ongoing problem.
Below are some ways to fix the problem so it does not happen again.
Ask For An Income Withholding Order.
If your ex won’t pay his child support or alimony, just cut him out as the middleman and get the money from his employer through an income withholding order. An income withholding order is an approved method to automatically require an employer to deduct a certain amount on a monthly basis from your ex’s pay before the paycheck goes out. You are taking money “off of the top” in much the same way as health insurance or 401(k) deductions. This can be done with a simple order executed by the Judge directing the employer to withhold the money. The process often takes four to six weeks to complete.
Garnish Your Ex’s Wages.
Similar to an income withholding order, you can request a garnishment of your ex’s wages or other money such as bank accounts. Unlike an income withholding order, a garnishment is available only for future payments and not past due payments. However, you can garnish money from a bank account. For example, consider the situation where your ex is selling a condo. The proceedings will be deposited into your ex’s bank account. A court can order that the money owed is withdrawn from your ex’s bank account and deposited into your bank account when the condominium sells. The state can also intercept your ex’s tax refund.
Ask For The Sale Of Pre-Existing Assets.
In certain circumstances you can request the Court order your ex to liquefy assets in order to pay the alimony and/or child support award.
Ask For A Lien On Property.
What if your ex has money in real property and money is not available to garnish? You can ask the Court to put a lien on the property. This way, the property cannot be sold and will not have a “clear title” until the debt is repaid. This is another option for when your ex not paying child support. Likewise if your ex has a rental property, you can ask the court to order that rental proceeds be paid to you directly from the tenant.
Ask To Put Your Ex In Jail Until He Or She Pays The Money.
The home run remedy to the problem is to ask that your ex be thrown into jail unless and until payment is made. This is often the swiftest but most extreme remedy to get payment.
Defenses To Making Payments
Of course there are certain defenses your ex may have that might preclude the remedies above. For example:
Inability to Pay: You can’t squeeze blood from a rock. If your ex really cannot pay because he or she is unemployed and doesn’t have any assets, this can be a defense. Economic misfortune that is not self-imposed is an absolute defense to contempt. What matters is whether the inability to pay is willful. If your former spouse is in a situation that he or she just can’t pay even with the best intentions, then the court will not hold your ex in contempt. Of course, this does not mean the obligation just goes away. The obligation continues unless your spouse gets the original order modified. However, it does keep the Court from sending your ex to jail.
Child Living With Your Ex
What if the child is no longer living with you, but is living with your ex full-time? This is and can be a defense for your ex against any child maintenance obligation.
Deficiencies In The Order
A technical defense to contempt exists when there is deficiency in the legal order. An order that is too indefinite, overbroad, or does not define when payment should be made may need to be fixed before making a motion for contempt. Generally, the order to pay must have a specific time and place by which the payment must be made in order to avoid contempt. Otherwise, a motion for enforcement or clarification is needed.
Divorce Attorney Representing Bergen County Residents
Alimony is the payment of funds from one ex-spouse to the other following a divorce. Just as there are different terms of alimony there are also different ways that the payment of alimony may be structured. The spouse who will be receiving alimony decides whether they want to receive alimony through the court (probation) system or outside of court (“direct pay”). If the alimony recipient chooses to receive their alimony payments through the court system then a probation account is opened and the probation department serves as the agency which receives or collects the alimony from the other spouse. The paying spouse’s wages can be garnished so that the alimony monies come directly from the employer to the probation department, who then disburses the money to the alimony recipient.
Alimony Payment Frequency and Methods – Outside Of Court
Alternatively, the recipient spouse can decide that they don’t want to have the probation department involved in the collection and distribution of the alimony payments. In this case the recipient spouse can decide to receive alimony directly from their ex-spouse. If the recipient spouse decides to receive alimony via direct pay from their former spouse they can always change their mind and ask the court to direct the probation department to collect the payment and disburse it to them. Most spousal agreements for direct pay include a provision that if the paying spouse is late or misses a payment that alimony can then be collected and disbursed through the probation department.
The Lump Sum Alimony Buyout
In lieu of alimony, the couple can agree to a settlement in which the payee spouse will receive a greater share of assets or just plain cash in return for waiving any right to ongoing support. To calculate the share, the spouses determine the amount of alimony that the payee spouse would receive over time and then discount it to its present value. For example, instead of receiving $2,000 per month for 10 years/120 months, which would equal $240,000, the payer could offer the payee ex-spouse a discounted present value lump sum payment upfront.
There are a number of advantages to a lump sum alimony payment. For the paying spouse, the financial dealings are done. The money is paid in one chunk, and all future income is the payor’s to spend as he or she wishes. In addition, the payor spouse is relieved of any burden to purchase a life insurance policy to guarantee that alimony is covered in the event that he or she dies before the alimony term ends. Conversely, by paying upfront in a lump sum the payment can be viewed as non-tax deductible equitable distribution, rather than tax-deductible alimony. As well, if the recipient spouse is likely to cohabitate or marry within a short time frame he or she may get a windfall if they receive a lump sum, as alimony would terminate upon marriage or cohabitation.
For the payee spouse, the advantage of a lump sum payment is that there is no more financial connection to their ex-spouse. The payee may enter into a new relationship at any time—or even get married—without losing the upfront payment.
The payee spouse has no need to worry whether payments will be made on a timely basis or whether their ex-spouse will seek to modify the amount of alimony due to changed circumstances. As mentioned above, the payee spouse could take the upfront payment as equitable distribution which is tax-free to the recipient, as compared to periodic alimony that is taxed to the recipient. The decision to opt for the lump sum payment in lieu of periodic alimony should be considered carefully by both sides. For the payee, a lump sum payment can only “do the work” of alimony—replacing income—if the payee spouse exercises financial discipline and prudent management. If the lump sum is blown or mismanaged there is no option for the payee to go back and try to get periodic alimony.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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