By Theodore Sliwinski, Attorney
There are many reasons people fall behind on alimony payments. It's possible the spouse that pays alimony ("paying spouse") lost a job, or suffered medical problems that interfere with the ability to work. It's also possible that the paying spouse just got tired of making alimony payments. This article provides an overview of what to do when your spouse fails to make court-ordered alimony payments.
If you're not receiving court-ordered alimony payments, you should try to find out why. Did your spouse involuntarily lose a job or experience a reduction in income because of illness or injury? If you believe your spouse is truly incapable of making alimony payments, you may consider working out an agreement between the two of you which reduces or suspends alimony until your spouse gets back to work. Make sure, however, your spouse knows you're prepared to go to court if the payments don't start again. You should also consider hiring an attorney to draft the agreement and ensure your rights are fully protected.
If, on the other hand, your spouse is simply trying to avoid the obligation to pay alimony or refuses to pay despite your agreement, you'll have to head back to court for help. You'll need to file a motion (legal paperwork) with the court, and ask a judge to order your spouse to make the overdue payments and keep up with future payments. This is sometimes called a motion for enforcement or contempt.
If you do end up in court, you should definitely consult with an experienced family law attorney, who can draft persuasive legal motions and represent your interests in court.
When paying spouses fail to pay court-ordered alimony, they are violating (disobeying) court orders, and judges don't like it when folks don't follow their orders. Courts have a lot of discretion in terms of what sorts of punishments or fines they can impose on delinquent spouses. A judge may order that the delinquent spouse's personal financial estate, including the rents and profits from any real estate, be confiscated and applied toward alimony as the court feels is reasonable and just.
As stated above, courts have pretty wide discretion in deciding what punishment your spouse will receive for the failure to pay, or how to enforce the alimony award. Although these may vary from state to state, most states allow the following remedies.
New Jersey courts have held that a paying spouse's willful (intentional) disobedience of a valid court order to pay alimony may be punished by contempt. So, if you live in New Jersey and your spouse has failed to pay alimony, a court might hold your spouse in contempt. If the judge finds your ex in contempt, the first punishment will most likely be an order to pay the overdue support and possibly an additional fine. After that, if your spouse continues to disobey the order, the judge may order jail time for the continued disobedience.
Many alimony orders start out with an income withholding order, which requires the payor spouse's employer to withhold the alimony amount from the payor spouse's paycheck and send it directly to the supported spouse. This type of arrangement takes the payor spouse right out of the equation, and guarantees that you'll receive alimony, as long as your spouse remains employed.
If your original alimony order did not include an income withholding provision, and now you're having problems getting paid directly by your spouse, you should consider asking the court for an income withholding order to ensure that future payments are made.
Unfortunately, income withholding orders won't work with self-employed (or unemployed) payor spouses. If your spouse is self-employed, you can ask the court to order your ex to set up a trust account that you can access if you don't receive your payments on time. If your spouse is willfully unemployed, you can ask a judge to order your spouse to look for work and/or impute (attribute) some income to your spouse based on his or her earning capacity (what a person could earn based on education, job skills, work history, and job opportunities).
A judge can award you a portion of your spouse's bank accounts, CDs, and other assets through the courts.
If your spouse owes you a substantial amount, you can ask the court to issue a money judgment against your spouse for the total amount owed, along with interest. You may also be entitled to reimbursement for the attorneys' fees you incurred in connection with the efforts to get your overdue alimony paid.
If you are owed a large amount of alimony, and your spouse is unwilling to pay, you should contact a family law attorney that can help you file a legal action to enforce alimony--it's not easy to do yourself, and once you do get a judgment from the court, a lawyer can make sure you actually get your money.