One common question that divorce attorneys receive from already divorced potential clients is “can I sue my ex-husband for alimony?”
Most of the time this question is being asked because the former spouse is not honoring their obligation to pay spousal support from their initial divorce case.
Most of the time folks dealing with this issue may still be healing from the process of obtaining the alimony award in the first place and now they must figure out how to get their court-ordered payments.
In this article, I am going to walk you through the process of getting paid on your alimony order because let’s face it if you can’t get paid then the court order isn’t worth the paper it is printed on.
Contact Your Ex
There will be many situations where a simple call to your ex will get the payments flowing again.
As we all know there are many ex-spouses out there who do not prioritize their alimony payment each month and will simply forget to make the payment especially at first when the order is fresh until they get into a routine of making the monthly payment.
But, you know them better than anyone else.
For most people, when the alimony payment is late the first thought that pops into their mind is “that deadbeat is trying to stiff me.”
As tempting as it is to assume the worst It is actually very common for former spouses who are not paying their support to be doing so because of an unexpected event that was out of their control.
In my years practicing as a divorce lawyer in Orlando Florida I have heard just about every reason that can come up for an ex-husband to not make his spousal support payments.
These include being laid off from his job, suffering an illness, a serious injury, or some other similar life event. Though most of the items on this list may seem temporary, my experience is that the former husband will usually want to explore his options to obtain a lower support payment in light of the happening of any of these things.
The fact is that in most jurisdictions if there is a substantial change in the former husband’s financial circumstances that are beyond his control the courts will allow him to seek a downward modification of his alimony payment.
While this is not an easy burden to reach, it is a real risk for any former wife who is receiving spousal support. The only time that you wouldn’t need to worry about modification is if, during your divorce, you opted to make your alimony “non-modifiable”.
In the event that the former husband does seek a modification he will need to undertake a legal process that mirrors the process of the initial divorce action. Some of these modification cases can last for months or even years in extreme cases.
Regardless of the reason for the nonpayment most former wives who are not receiving their court-ordered spousal support payments are going to need to deal with the enforcement process for obtaining their payments.
For this reason it is important that as soon as it becomes apparent that you are not going to receive your money you will need to take things to the next level by consulting with an experienced attorney.
Consult An Attorney
In my years as a family attorney one principle has always proven itself to be true and that is that people will delay calling an attorney as long as they possibly can because they don’t want to deal with the stress or the expense, however, they always end up regretting not calling the attorney sooner.
Unfortunately, attorneys cannot snap their fingers and obtain enforcement or contempt orders for nonpayment of alimony. This is often a process consisting of retaining the attorney, the attorney drafting a motion for enforcement or contempt, the attorney filing and serving the motion on your ex-husband, the attorney contacting the judge’s office to obtain and coordinate hearing time on the motion, the attorney preparing for the hearing, attendance at the hearing, and the attorney drafting an order from the hearing and obtaining the court’s entry of that order.
If that sounds like a lot of procedure to go through just to get an order enforcing the alimony payments then you are correct.
For this reason you never want to delay contacting an attorney when your alimony payments are not made. This is because your ability to retain the services of an attorney to assist you will dwindle more and more with each month that goes by that you do not receive your spousal support payment. The longer you go without receiving your full monthly payment your financial situation will become more critical and most former husbands know this.
I have seen former husband’s attempt to “starve out” their ex-wives only to coerce them into agreeing to an unfair modification out of desperation to get their alimony payments flowing again. This is not a situation that you want to find yourself in which is why you must speak with an attorney as soon as your first payment is late and you are not able to immediately obtain payment by discussing it with your ex.
When you are looking for an attorney to assist you you will want to find the right lawyer who is experienced in enforcement actions in family law. You can read online reviews about different lawyers, or obtain personal referrals from other people you know who have gone through similar situations.
Collecting Owed Alimony
There are several ways that your attorney may be able to get your alimony payments flowing again and to obtain repayment of any delinquent installments that you should have received.
This can begin with the attorney drafting and sending a demand letter which sometimes by itself can incentivize your former spouse to start making the payments again.
However, if all of your efforts at diplomacy are not successful then your enforcement proceeding will need to see the inside of a courtroom.
Go Back To Court
In most jurisdictions alimony is enforceable just the same as if it were child support. While this may not sound significant to most people, it is great news for former wives who need to enforce their spousal support obligations.
This provides more streamlined enforcement of alimony payments more so than if it were a payment from some form of equitable distribution from assets in the divorce.
Your lawyer will need to file a motion for contempt where he or she details the current court order for alimony, provides the details of the delinquent payment, informs the court that they made a good faith attempt to obtain the payments without needing to involve the courts, that they are requesting a finding of the court that the former husband is in contempt, requesting immediate payment of the delinquent amounts of support, and requesting an award of attorneys fees for having to go through the process of hiring an attorney to enforce the court order.
By far, the scariest part of this process for most people is the hearing on the motion for contempt. Most people want to avoid going to court as much as they possibly can, however, it should bring you great relief to know that the judge is there to help you to enforce court orders and part of their function as judges is to ensure that everybody is following the prior orders of the court.
It should also bring you some measure of assurance that your judge has probably heard every excuse in the book that a former husband can give for not paying their alimony, the judge can usually see right through these excuses, and they rarely have much patience for excuses.
At the hearing, your lawyer will have you sworn in to provide testimony regarding your court order, when you stopped receiving the payments, your communication with your ex regarding the delinquent payment, your need for immediate reimbursement and continued payments, and your need for attorney’s fees that you spent having to get into court on the motion for contempt.
Sometimes, the former husband will have an excuse or justification that satisfies the judge as to a legitimate inability to make the payment. Usually a legitimate justification for nonpayment will need to be accompanied by the former husband filing a supplemental petition for modification of alimony. Your family lawyer will understand this process and will be able to assist you should you need help in an alimony modification case.
Ultimately, in the contempt hearing your main job is to establish that your former spouse owed you the support payments and that they haven’t paid pursuant to the court order. Your former spouse’s job in the hearing is going to be to try to convince the court that they had a legitimate reason not to make the payment.
One form of payment of alimony is when alimony payments are deducted immediately out of the former husband’s paychecks. This is even more effective in enforcement actions when the ex-husband failed to make on-time alimony payments and the court ordered the future payments to come directly out of his paycheck.
This theory is borne out of the idea that an ex-spouse will not always make it a priority to pay his court-ordered alimony, however, wage garnishment will guarantee those on-time payments for the benefit of the former wife.
Where I practice in the ninth judicial circuit in Orange County Florida the standard payment method for alimony has become what is called an ”income withholding order”. These are the same orders used for payment of child support and are prepared by the lawyers, executed by the judge, and sent directly to the former husband’s employer.
These orders are extremely effective because they place the employer under a court order to make the payments on time and if the payments are not taken out on time the employer can get in trouble with the court.
For this reason we always recommend that ex-wives who are not receiving their alimony on time look into the availability of income withholding orders in their jurisdiction as this is the most effective way to guarantee on-time payments.
The best part is that if the husband changes jobs a copy of the withholding order can simply be sent to his new employer who will then be under an order to take out on-time payments.
Writ Of Execution
Let’s say you have a situation where your delinquent support has accumulated and has become a pretty big number. Your attorney then has to figure out how to collect those funds for you.
If this collection is left up to the judge the court will normally set an additional repayment amount that the former husband will owe on top of his regular monthly payment to pay off the delinquent support over time.
However, in certain situations your attorney can obtain a judgment for the delinquent amount which then allows your lawyer to take advantage of some of the very interesting manners of collection that the courts provide.
One of these collection methods is called a writ of execution. This is a process where the lawyer takes the judgment for the delinquent alimony to the court and simply asks for a writ of execution, also referred to as a writ of attachment. Though different judges have different preferences for issuing these orders it basically boils down to a situation where you have the ability to utilize your local sheriff’s department to seize and sell off your former spouse’s property in order to satisfy the delinquent support amount.
I have heard stories of Sheriff’s deputies pulling up a moving truck to the former husband’s front door while he was at work and emptying out his entire house. If you are looking for something that will provide an incentive for the former husband to make on-time payments then this is it.
Another common approach to this theory is for your attorney to identify your former spouse’s bank accounts, to seize the account, and to have those funds provided to you as payment of the delinquent support.
Contempt Of Court
Usually, the first time you take your former spouse back to court for contempt on nonpayment of alimony the judge may hold them in contempt and order them to pay but the process may feel more like a light slap on the wrists to them than a real punishment. This is not unusual as the judges will give most people the benefit of the doubt that mistakes will happen the first time.
However, if the nonpayment becomes a repeated issue and the former husband is obviously noncooperative and does not respect the orders of the court the judge has the latitude to go as far as to throw them in jail for nonpayment.
One of the most common situations where the delinquent former spouse ends up in jail is that where your lawyer filed a motion for contempt, set the hearing, provided proper notice of the hearing to your former spouse, and when your former spouse did not show up for the hearing.
Missing a contempt hearing will usually earn them an order called a “writ of bodily attachment” which is essentially a civil warrant for their arrest.
When they are picked up on a writ they are taken to the county jail just like any other criminal and will not be able to get out until they can post a payment which is called a “purge” that goes directly to you to satisfy delinquent support.
But paying the purge and getting out of jail does not end the legal process for the delinquent former spouse as they still need to come before the judge to explain themselves in the underlying motion for contempt that gave rise to the hearing that they missed.
Many jurisdictions will allow for interest to accrue on spousal support payments that are delinquent. In child support cases this accrual of interest is usually automatic, however, it is not always automatic in alimony cases and you will want to have your attorney review your particular state statute regarding the specific interest you are able to request.
In my experience the best way to address interest for delinquent payments is to specifically reference the accrual of interest in the marital settlement agreement during the divorce.
Filing A Civil Suit
Though family courts are a type of civil court they are a separate division from your average civil litigation court that would hear things such as torts, breach of contract claims, and other cliché civil issues.
If your original divorce settled at mediation then you would have had a marital settlement agreement that you and your ex signed and that was later provided to the court for entry of a final judgment of divorce.
The marital settlement agreement is essentially a contract and are enforceable under contract law.
Therefore, sometimes attorneys will choose to enforce delinquent alimony in a civil court rather than a Family Court if there are mechanisms of enforcement that may exist in the civil court that are not available in the Family Court.
Though this is the road less traveled it is definitely a plus if your attorney understands the scope of this option and considers it as part of your overall case strategy.
The dynamic of most alimony issues is one filled with hurt feelings, anger, and conflict. Most Former Husbands who are ordered to pay alimony are not happy about it and these support orders often result from contested divorce litigation.
The important thing to remember is that even though the initial divorce case may have ended, you are still in an adversarial role with your ex-spouse for as long as they owe you support payments. For this reason, you should rarely delay calling an attorney if the payments stop flowing as this is typically a sign of bigger problems in the case that are about to come to the surface.