Post-Judgment Enforcement of Decrees
By Orlando Family Law Attorney Eduardo Mejias
Practicing Exclusively Family Law Since 2005
Divorces Are Seldom Truly Over
Divorces are seldom truly over with the final judgment. Many divorced couples, or parents involved in paternity actions, find themselves re-hiring their family law attorneys just months after the final judgment. Why is it this way? Because, in comparison to criminal sentences, (jail time or probation), and civil judgments (defendant paying money to plaintiff), family law judgments are much broader and contain many more provisions that are more difficult to enforced and can be violated.
For the sake of brevity, I have distilled enforcement actions in family law cases into two categories: “contempt actions” and actions to “compel compliance”.
Contempt of Court Actions
Cases of Child Support and Alimony
Generally, a party that does not comply with a court order may be found “in contempt of court.” Ex-spouses (or parents required to pay child support in a paternity action) face the prospect of a contempt finding whenever they do not make a child support or alimony payment. However, Florida courts will not hold a divorced ex-spouse in contempt in the specific case of not transferring assets as ordered in the divorce judgment.
All family law judges will seek the answers to these questions when presented with a motion for a contempt hearing regarding unpaid child support or alimony:
- Did the the person ordered to make the payments pay the full amount in a timely manner?
- If not, did he or she possess the ability to pay and still chose not pay the ordered amount?
- If the answer to the second question is yes, then what are the appropriate sanctions to apply to the person responsible for paying in this case?
The bulk of the testimony and evidence at a contempt hearing usually revolves around the question of ability to pay. This is because a contempt finding requires proving that the person responsible for paying has that ability. And even if the judge holds that person in contempt, he or she can only be incarcerated if the judge concludes from the testimony and evidence that the paying party has the means to pay the ordered amount, and still does not pay it.
I emphasize the last point because many of my family law clients have mistakenly assumed that a motion for contempt leads automatically to a stay in the local jail. Quite the contrary, due process requires the appropriate answers to the three questions listed above.
This issue of a ability to pay, as well as the available sanctions is discussed on the Child Custody And Support page.
Compelling Compliance With The Judge's Decree
Transfer of Marital Assets
In divorce actions, many ex-spouses become frustrated when they do not receive marital assets that were ordered to be transferred to them (such as portions of bank accounts). Why can’t their spouses be found in contempt?
The answer lies in the constitution of the State of Florida. Our state constitution forbids imprisonment for the failure to pay a debt. The asset that a divorce court orders to be transferred constitutes a “debt” for the transferring spouse. In contrast, Florida courts consider paying child support and alimony obligations to be a way of furthering public policy, not merely satisfying a debt. Thus, these two duties fall outside the constitutional bar against imprisoning debtors.
Therefore, instead of filing for of a “contempt of court” action, as in a child support case, the spouse who has not received a promised asset distribution must resort to a “motion to compel compliance.” The motion to compel requires a more complex set of actions to achieve the asset distribution that the judge had originally ordered. For more information please see Property Distribution in Divorce.
How to Compel Compliance With Transfer Of Assets
To “compel compliance”, in this case, means that a family law judge orders the other spouse to transfer the asset within a certain amount of time. But, if the paying spouse does not comply, the judge cannot order penalties that could eventually lead to imprisonment.
Filing spouses are limited to enforcing that order in the same way as any other civil judgment for money. This means that, after the final judgment, they must obtain a Writ of Execution to collect the amount granted by the judgment. After a period dedicated to the discovery of the obligor's assets, steps may have to be taken to obtain a lien on the subject property.
This process involves more complexities and nuances than are discussed here. In summary, collecting the actual assets granted by a judgment requires significant additional effort. You need an experienced and competent family law attorney to handle these situations.
How You Can Get Help
In the Orlando metro area, call me, attorney Eduardo J. Mejias, of AAA Family Law at (407) 260-6001 to schedule a free thirty-minute initial consultation. There is an hourly charge for additional consultation time. See Family Lawyer Retainer Fees.
At the free consultation I will realistically assess your situation and quote you a fixed attorney retainer fee in advance of signing any contract or making any payment.
Our attorney retainer fees for post-judgment enforcement of decrees or contempt of judgment range between $1,000 and $1,500 depending on their level of complexity.
AAA Family Law represents clients in all of the county courtrooms of the Orlando metro area. We can also represent you in any family law appeal case in the state of Florida.