“My Former Spouse will not Comply with a Court Order, Property Settlement Agreement, or Judgement of Divorce. How can I Enforce my Former Spouse’s Obligations, and how can I Make Sure he or she Complies Moving Forward?”
Many litigants who have been through a divorce or other family law related court proceeding are often frustrated by an opposing party’s subsequent lack of compliance with court orders and agreements after the initial court proceeding. For example, many litigants often spend thousands of dollars on attorney’s fees to enforce Property Settlement Agreements that they previously paid their attorneys to negotiate and obtain for them during the divorce.
We at Lyons & Associates, P.C. realize how frustrating this can be. Often, litigants are left only with two options, to wait and hope that at some point the violating party complies with his or her obligations or to hire an attorney to enforce their former spouse’s obligations under a Property Settlement Agreement or previously issued Court Order. Litigants also run into problems with enforcing their former spouses’ obligations to comply with agreements or court orders, including but not limited to their obligations to pay child support, pay alimony, comply with equitable distribution, and last but not least, to enforce one spouse to comply with an order or agreement concerning custody and parenting time.
Although this process is frustrating, by planning ahead some of the problems listed above can be avoided. For example, agreeing to have child support and/or alimony paid through the applicable probation department can help both parties avoid any unnecessary disputes. Since the probation department tracks, manages, and enforces the payment of child support and alimony, it is often not necessary to retain an attorney to enforce the payment of same. Further, if support is paid through probation “via income withholding” the support is automatically deducted from the payor’s check and the payor’s employer is legally obligated to set up the withholding of support from the payor’s pay checks. Sometimes the paying spouse or “payor” is not required to pay support via income withholding because he or she is self-employed, receives income on an irregular basis, or is paid in cash. If a litigant believes that the paying spouse or “payor” will likely default on his or her obligation to pay support, if support is paid through probation directly and not via income withholding, the spouse receiving support or “payee” could request that the payor’s obligation to pay support be placed on “two week warrant status.” If a payor is placed on “two week warrant status” the probation department will automatically issue a warrant for the payor’s arrest if the payor misses two support payments, whether the missed payments are consecutive or non-consecutive.
If an opposing litigant has already failed to comply with a Court Order or Property Settlement Agreement, the Court may require the violating party to pay the counsel fees and costs the enforcing party incurred in connection to seeking judicial enforcement of the Order or Agreement. R. 1:10-3. Furthermore, Rule 1:10-3 provides that the Court may issue an order for commitment for the purpose of enforcing Orders and Judgments of the family part. Id. In other words, the Court may order that the party in violation of the Order or Agreement be arrested and held in the county jail until the party complies with his or her obligations to pay support. For example, the Court may condition the violating party’s release from commitment on his or her payment of a sum certain to the payee spouse. This is called “civil commitment” and is not punitive in nature, but coercive. In fact, before a violating spouse is committed, the Court is required to hold an “ability to pay hearing” to determine if the violating party has the means to pay the amount on which his or her release is conditioned. If the violating spouse does not have the means or “ability to pay” this sum, the Court is not permitted to keep the violating spouse in jail. If the Court finds that the offending party has the means and ability to pay the sum on which his or her release is conditioned, the litigant can just pay that sum and he or she will immediately be released. Many litigants shy away from utilizing this remedy because it may sound harsh or excessive. However, since the Court is required to hold an ability to pay hearing prior to the violating party’s commitment and he or she is found to have the ability to pay the sum set by the Court, the violating party “holds the key” to his or her confinement and controls whether or not he or she will remain incarcerated. The violating party’s payment of the sum set by the Court is figuratively the “key” to his or her release.
If a litigant fails to comply with custody or parenting time orders, in addition to the remedies available to the Court under Rule 1:10-3, on a finding that a party has violated an order respecting custody or parenting time, the Court may order the following, either singly or in combination:
- Compensatory time with the children;
- Economic sanctions;
- Modification of transportation arrangements;
- Pick-up and return of the children in a public place;
- Counseling for the children or parents or any of them at the expense of the parent in violation of the order;
- Temporary or permanent modification of the custodial arrangement provided that such relief is in the best interest of the children;
- Participation by the violating parent in an approved community service program;
- Incarceration, with or without work release;
- Issuance of a warrant to be executed upon further violation of the judgment or order; and
- Any other appropriate equitable remedy. R. 5:3-7(a).
Furthermore, if a party is found to have violated an alimony or child support order, in addition to the remedies provided in Rule 1:10-3, the Court may order the following, either singly or in combination:
- Fixing the total amount of child support or alimony owed, entering judgment in that amount, and ordering that the total sum accrue interest until satisfied in full;
- Requiring that the total amount of child support or alimony owed be paid on a periodic basis until satisfied;
- Suspension of an occupational license or driver’s license;
- Economic sanctions;
- Participation by the violating party in an approved community service program;
- Incarceration with or without work release;
- Issuance of a warrant for arrest if the violating party further violates the judgment or order; and
- Any other appropriate equitable remedy. R. 5:3-7(b).
If the violating party has violated a Court Order or Property Settlement Agreement, the party seeking to enforce the Agreement should confirm that he or she is in full compliance with his or her own obligations under the Court Order or Property Settlement Agreement. If the party seeking to enforce the Property Settlement Agreement or Court Order is in violation without justification, the Court will likely be unreceptive to the enforcing party’s request for an award of counsel fees or other sanctions against the opposing party. The Court will not excuse either party from his or her obligations under an Agreement or Court Order, even if the other party failed to comply with the Order or Agreement first. Therefore, before either party decides to file a motion to enforce a Court Order or Agreement, the moving party must first determine whether he or she is in full compliance to obtain the most favorable results. In addition, encourage your attorney to be creative with his or her requests for relief and methods of enforcing orders and agreements. As set forth above, Rule 5:3-7(a)(10) and Rule 5:3-7(b)(8) provide that on a finding that a party violated a custody or parenting time order or where a party violated an alimony or child support order, the Court may grant, “any other appropriate remedy” in addition to the remedies provided therein.
Contact the Law Office of Lyons & Associates
At Lyons & Associates, we bring a high level of personalized service and attention to men and women in New Jersey. To schedule an appointment, contact us online or call our office at 908-575-9777.
Written by: Mark T. Gabriel