I've been told to take my ex to small claims court for reimbursements owed to me. Is that a good idea? Can they file a counter claim on other issues (e.g. Child support reduction)?
I am sorry that your ex is not complying, in most instances if your ex does not comply with a court order then your remedy lies in the court which ordered the divorce and in most instances you may file a contempt. Your idea of small claims is an intersting idea the only issue woudl be whether your NJ small claims would accept jurisdiction of a matter which originated out of a divorce proceeding. My best advice would be to go back to the divorce court on a contempt. And yes, your ex may be able to file a separate action to reduce support if his or her complaint has merit, however the two issues may not be related.
Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.
If you ex is not complying with an Order entered in the Family Court you should likely be pursuing your claims, i.e. contempt of court; violation of litigant's rights; enforement...in the Family Court, not the Small Claims Court.
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Agree with other answers.
If you filed a complaint in small claims court, it would be dismissed by the court under something called "the entire controversy doctrine", which says (basically) that all issues arising from a case need to be handled in one lawsuit wherever possible.
The process to enforce a divorce (or non-divorce) order is to file a post-judgment motion. The judiciary has forms available if you're going to try it yourself. Remember to attach a copy of the order you're seeking to enforce (technically, you're supposed to attach all prior orders, but the court is likely to deny your motion if you don't attach the one you're trying to enforce or modify). Remember to allege that he has the ABILITY but not the inclination to comply with the order (a prerequisite for an enforcement application / order).
Yes, he can file a cross motion to modify if you have to enforce, but those motions are a lot more involved and complex than a basic enforcement application.
IF YOU LIKE THIS ANSWER AND APPRECIATE THE TIME IT TOOK TO WRITE IT, PLEASE SELECT IT AS "BEST ANSWER." Thanks. The above is said without seeing your case file and without my understanding the entirety of the facts of your case. Depending on those facts, the above information be may incomplete or may be completely inaccurate. The above is intended as general information only based on what you described and not as legal advice. I advise you to consult with counsel who may be able to provide better information commensurate with a better understanding of your situation.
You have been getting bad advice, presumably from non-lawyers. You should talk to a lawyer. By the way, my office is in Rahway, so . . .
Robert Ricci, Jr., Esq.
Legal disclaimer: In accordance with the Avvo community guidelines, this communication does not constitute "legal advice", nor does it form an attorney-client relationship.
You are getting bad advice. You don't bring claim against ex spouse for failure to pay court ordered support or maintainence in small claims court. You go back to the court where the order was issued and or family court and seek enforcement. Often the clerk will help you complete the forms necessary to pursue an order to show cause or contempt of court motion. Get a lawyer and have your rights enforced . Once an order is entered they will garnish his salary and or assets. If he does not comply they will suspend his license and or put him in jail.
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