FDR once said, “the only thing we have to fear is fear itself". The context in which this statement was made is strikingly similar to the scenario many find themselves in when choosing to end his or her marriage. When FDR spoke those famous words during his Inaugural speech in 1933, adversity had reached its peak and panic was rampant; the unknown was all there was to look forward to. Oftentimes, not knowing what the future holds is one of the greatest sources of anxiety when facing a divorce or other ancillary family law issue.
And then it comes, ahhhh, the sweet sigh of relief you have been anxiously awaiting. Somehow, the clouds have parted and a settlement is reached. Even if your divorce was a walk in the park (excuse me, can you please try to tone down your sarcastic laughter? I’m trying to write here), nothing is more liberating than holding a final judgment in your hand knowing each and every issue you fought so hard to resolve has finally been ironed out. No longer are you on your own fighting an uphill battle with your ex, you have the protection of the court on your side! That has to be worth something! …. That is worth something ,right??
Many times, the inability of a party to maintain his or her obligations under a Marital Settlement Agreement or final judgment is of no fault of their own. Maybe half of the stock portfolio you were supposed to receive as part of equitable distribution was being managed by Madoff Investment Securities; or perhaps your Baby Daddy, who was in the final year of his multi-million dollar contract for the Marlins, busted his knee and got sent down to AAA, rendering the hefty alimony payments you were awarded impossible. Let’s face it, even if you’re not rubbing elbows with the upper-crust at Mar-a-Lago on the weekends; you are still most likely feeling the effects of the economic downturn (if not more so). One of these effects may very well be the failure to receive the settlement you were expecting or fought so hard to reach.
On the other hand, you have those who already know their ex is a scumbag and could have predicted the lack of compliance. They were always shirking responsibility and selfishly chasing their own wants and desires during your relationship, why should that change now?! You never received that coin collection you were awarded, and those $80 Gs your lawyer fought tooth and nail for as lump sum alimony? Hellooo, that should have been delivered to you two months ago! As for child support and alimony, forget it! You would as soon expect Elvis himself to show up on your doorstep in a three piece leisure suit asking for a peanut butter and banana sandwich than to ever think you would get half of what the court ordered that good-for-nothing *&!% to pay! Surely, there has to be some recourse in this situation at least, I mean… c’mon man!
Enforcement. The magic word. The final judgment must have been signed for a reason! You may not be a legal eagle, but you do know when a judgment is entered and someone does not abide by its terms, the court has enforcement power. From Perry Mason to Judge Judy, you’ve seen dozens of tv judges bark, “Contempt!" at the deadbeat party and he or she is instantly grabbed by the bailiff and carted off to jail. The only problem is, in real life, things aren’t that simple. Contempt will not be granted unless it can be shown that the non payment is “willful". Regarding support payments, it must be proven that the individual had the funds but elected not to pay either child support or alimony. Unfortunately, there is even less assistance available for the enforcement of an equitable distribution scheme, as contempt is unavailable as a remedy for enforcement. Enforcement through contempt of debts not involving support violates the constitutional provision prohibiting imprisonment for debt.
To avoid this headache altogether, it is important to have an attorney on your side who knows the law and the correct provisions to include in a Marital Settlement Agreement or final judgment to ensure you receive what is rightfully yours. Prepare for the future, instead of having to worry about it when it comes.
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