Enforcing a Divorce Decree
A divorce decree, sometimes called a divorce judgment, is a court order which much be followed by both spouses. If one spouse or the other fails to act in accordance with the order, the other spouse may need to take steps to enforce the order.
Common ways of violating a decree include failure to pay debts, failure to list the family home for sale, improper division of a retirement plan and failure to divide a retirement plan at all. The method of enforcement depends on what type of provision was violated. The first and most direct route is to ask the court that issued the decree to hold your spouse in contempt of court for failing to comply with the court's order.
Failure to Pay Debts
The court's order will often designate who is responsible for the payment of certain debts, and if your spouse fails to pay his or her designated obligation, you may file a motion or order to show cause for contempt. Contempt is a quasi-criminal proceeding for failure to comply with court orders.
In a contempt proceeding, the judge often gives the offending spouse a second chance, with a reasonable opportunity to do what the order requires. If the party still fails to comply within the allowed amount of time and doesn't have a legitimate excuse, such as job loss and a diligent effort to find new employment, the court can order jail time to force the party to follow the order.
Attachment of Property
At times, a spouse would rather sit in jail than follow the decree. Under these circumstances, it is possible to enforce the judgment by seizing the ex-spouse's other property. An attorney is usually needed for this type of proceeding.
Enforcement of the judgment is carried out by asking the court that issued the judgment to issue a writ of attachment. The writ of attachment allows property owned by the party who violated the order to be seized.
If the property is real property, for example, a tract of land, an attorney can petition the court to appoint a receiver to take "custody" of the real property, sell the property, and pay the person owed the amount due out of the proceeds.
Regardless of the enforcement method, the party enforcing the judgment must demonstrate to the court that they tried to persuade the other party to comply with the order in ways that were less harsh. The court will want to see documentation showing attempts to persuade the party to comply, as for example, letters requesting a resolution of the situation sent prior to asking the court to intervene.
Failure to List the Family Home for Sale
Enforcing a decree requiring a spouse to sell the family home requires a slightly different procedure. If an ex-spouse does not cooperate in the listing or sale of the home, a contempt proceeding can be initiated. The judge will often appoint an agent or receiver and provide directions for the the agent to list, sell, and distribute proceeds of the home.
Letters and documentation are critical to demonstrate the attempts made to resolve the matter without court action prior to asking for this type of contempt relief.
Documentation that the party seeking enforcement tried to convince the violating party to comply prior to asking the court to enforce the order can also be used to request payment of attorney's fees and costs of the enforcement.
Violating Provisions for Division of Retirement Accounts
In addition to tangible property, divorce decrees also divide accounts, like retirement programs, as part of the overall property division. A contempt proceeding can be initiated if a party did not receive their share of a 401K or retirement, but this is sometimes an ineffective remedy. The funds may be spent by the time the court can take action, meaning the obligated party is no longer able to pay. A contempt proceeding wouldn't help under these circumstances.
It is best for parties make sure that a Qualified Domestic Relations Order (QDRO) is prepared and served on the retirement plan administrator at the time of the divorce, to avoid these possible issues. The QDRO places the plan administrator on notice of how the court intended the retirement shares to be distributed, thereby making the plan another potential responsible party to any enforcement action.