My ex-spouse (or “ex”) and I have an agreement and court order that says we share college expenses equally, but my ex isn't paying. What can I do?
You can file a motion (request) to enforce your agreement and for contempt with the divorce court. “Contempt” refers to a violation of a court’s order. A finding of contempt could mean fines and even jail time for disobedient exes – those are two great ways to encourage someone to follow an order.
Do I need a lawyer to represent me?
Not necessarily. You can get the forms at the courthouse, fill in the information, and serve the papers on your own. Many courts also have volunteer lawyers available to help with paperwork. However, this lawyer will not be able to represent you at the court hearing, which can get legally complicated.
It’s always best to get some legal advice when you’re headed to court. If you can afford a lawyer, you should contact an experienced family law attorney in your area for help. If not, many local bar associations have volunteer attorney programs for low-income individuals. Check with your local bar association to see if they have a family law program you might qualify for.
But if I hire a lawyer, will I end up paying more than the college costs in legal fees?
Judges can award legal fees, and usually do these days, but not necessarily all of your fees.
How quickly can I get a hearing?
Typically, contempt cases are scheduled for trial within a few weeks.
Will the judge force my ex to follow the agreement?
Well, no one can guarantee a result, but assuming everything is pretty much the same as it was when you signed the agreement, you should be able to enforce it.
Is there a way for my ex to wiggle out of our agreement to share college expenses?
Your ex could file a “complaint for modification,” which is a request to change the provision that says you both have to pay half of your daughter's college expenses. Some judges will agree to hear the contempt and modification cases at the same time, which could mean a major delay in your contempt hearing.
At the modification hearing, your ex can ask the judge to change the agreement based on a "significant change in circumstances." But, that's not an easy thing to prove.
But things have changed. I make about $12,000 more now than I did three years ago when we divorced. College expenses have gone up, too. And my ex remarried and has another child. Does this mean my ex doesn’t have to help pay?
The court wants to see a major unforeseen change before it will modify an agreement. The changes you describe were predictable. Maybe you were working part time three years ago and you work full time now. Or maybe you received a raise and bonus each year. College expenses have been increasing every year, and most people get remarried after divorce. These are not likely to count as major or substantial changes. But, it will be up to a judge to decide after reviewing all the facts.
I think my ex is hiding money under the new spouse’s name. Shouldn't that money be used to pay college expenses?
Yes if you can prove the point. Judges like to see a paper trail, so you'll have to do some investigating before going to court with that allegation.
Do I have to hire a detective to prove this?
Not necessarily. First, try "discovery" techniques, such as interrogatories (written questions answered in writing by your ex under oath); depositions (oral questions posed by your lawyer and answered orally by your ex under oath); and requests for documents, such as tax returns, bank statements, checks, loan applications, and credit card statements.
For more information on how to get this type of information, see How to Find Hidden Assets in Divorce, by Lina Guillen.
Do I need the court's permission to conduct discovery?
No. Once you file your motion for contempt, you and your lawyer can conduct discovery without the court's written permission.
Does that mean my ex can serve me with discovery too?
What about my new spouse's income? Can my ex get that information?
In theory, your new spouse has no obligation to support your children from a prior marriage, but your ex may get to see your joint tax returns with your new spouse's income. Some people ask the court's permission to "redact" or cross off their new spouse's financial information from joint returns.
How can I prevent all of this from happening in the first place?
Try speaking to your ex about the children's education before they head off to college. Make sure your ex has a voice in the decision-making process (people who come to their own agreements voluntarily are more like to follow them). Talk to the kids about realistic choices based on family finances. Make sure your children apply for scholarships, loans, work study programs, and contribute from their own savings if at all possible.
As usual, resolving these divorce-related questions requires communication and planning.