Enforceability of Divorce Decree
The old maxim, “a contract is only as good as the paper it’s written on” is hopefully not true in family law. The collection process in matters of spousal support/child support/equitable division is facilitated by the availability of the court to promptly determine the failure of a party to pay the required sums and enforce the divorce decree by a number of different remedies. Because the parties’ settlement agreement was made a part of the final judgment and decree of divorce, or because the judgment itself sets out the terms and conditions of payment, a party’s failure to pay is deemed a violation of a court order, not simply a failure to pay such that ordering the party to jail would constitute imprisonment for debt. Making a finding that a party is in contempt of court for failure to abide by the terms of the judgment not only can subject a party to a series of sanctions such as a repayment schedule, interest penalties, even the loss of driver’s license or incarceration, it may also include an award of attorney’s fees to be paid by the party held in contempt.
Certainly there are many defenses which may be employed to prevent such a holding of contempt, including a party’s inability to pay, the terms requiring compliance are too vague to be enforced, good faith reliance on an agreement by the parties otherwise, such as a change in custody of the children or the payment of certain other expenses for the children, but there must be evidence of the agreement, or even that the complaining spouse has acted in violation of the same order.
Besides the failure to pay other obligations can be enforced as well, such as failure to allow visitation, maintain medical, life or car insurance as required, or any responsibilities imposed on a party.
Regarding the failure to pay child support, alimony, attorney’s fees, or other direct payments, these obligations can be further enforced by writ of execution, which requires the obtaining of a writ of fieri facias (fi fa) and thereafter levying on any property, real or personal, of the spouse. The sheriff would then be authorized to sell or otherwise release the property in order to obtain the funds to satisfy the fi fa. Such an extraordinary remedy is not as often employed due to the inability to identify sufficient property to provide for the sale which is not highly leveraged. Another enforcement tool is garnishment, where the offending party’s wages, bank accounts, or any other source which is holding money for the party can be garnished. This procedure is subject to certain restrictions, such as only being able to obtain a percentage of the wages or the inability to garnish certain accounts such as retirement, which are protected by law. A continuing garnishment may be filed against the obligor’s wages, so that the garnishment can run for a series of months.
Georgia counties through the Georgia Department of Human Resources have established Child Support Receiver offices which have been created for the purpose of collecting child support and spousal support under the Child Support Recovery Act. It is an administrative process which, while generally a lengthy process, allows the custodial parent or former spouse to obtain child support and alimony arrearage without the assistance of an attorney. A similar mechanism is in place to attempt to collect child support arrearages when the ex-spouse does not live in Georgia through the Uniform Interstate Family Support Act, which contains a multitude of other powers. It provides for not only attempting to collect arrearages, but to also establish support orders in determining parentage, order income withholding, modify a support award and enforce orders through the collection remedies mentioned above such as contempt, levy, or even requiring the obligor to seek employment in certain instances.
In all these various collections procedures, it is not necessary to solely pursue only one, as the remedies are concurrent and can be used simultaneously to obtain past due arrearages, so long as there is no over payment from the collection procedures. One other method of ensuring payment, while not necessarily a collection remedy for arrearages, is to require that the obligor pay through an Income Deduction Order which is mandatory unless the parties agree otherwise. It provides for the obligor’s employer to automatically deduct the amount of the support directly from the payments due the employee to ultimately have the funds paid over to the obligee. However, there are certain matters to be considered in attempting to pursue this procedure, the most obvious being the obligor may be self-employed or not be paid directly in an employer/employee relationship.