Enforcing a Divorce Judgment
Once a divorce decree has been entered, the judges close their file and the lawyers generally conclude their representation. There might be some housekeeping items (transfer the properties, close some accounts) but these are generally handled between the parties. All in all, it is presumed (at least in the beginning) that each party will comply with whatever terms the divorce judgment (or the Marital Settlement Agreement) contains. However, in practice things don’t always work out this cleanly and neatly.
As a result, every divorce decree contains some language toward the end which indicates that the Judge will retain jurisdiction for purposes of enforcement. But when it comes to the property division portions of a divorce judgment, the courts can only do so much because a former spouse is limited to the remedies available to general creditors.
Therefore, it is important to understand the remedies available to enforce a divorce judgment:
- Order of Enforcement. If the default is based upon something other than the payment of money, the Court can order a party to comply. For example, if a property is to be listed for sale, the Court can order a party to sign a listing agreement so that it can be placed on the market. If the party refuses, he or she could be held in criminal contempt for violating a direct order of the court.
- Automatic Transfer. If the default is based upon the failure of a party to transfer property to the other (by executing a title or sale document); the Court can sign the document on their behalf and order that the Final Judgment constitutes an actual grant or assignment of the property interest. This should be enough to satisfy a closing or title agent should the property be sold at a later date.
- Award of Fair Market Value. If a party fails to turn over property awarded to his or her former spouse, the Court can enter an order awarding the recipient a money judgment for the fair market value of the property. Under this scenario, the recipient spouse will present evidence (including his or her opinion) as to the value of the property and the Court will award this sum in lieu of the transfer.
- Reduce to Money Judgment. If the default is based upon a failure to pay a sum of money, the Court will enter a money judgment for the amount that is owed, plus interest. (In Stuart and throughout the State of Florida, the current statutory interest rate is 4.75%.) The difference between a divorce decree and a money judgment is the inclusion of the words “for which let execution issue”. This allows the compliant party to have the defaulting party’s property seized and sold to pay the amount owed.
- Fact Information Sheet. The Florida Family Law Rules of Procedure state that on the request of the compliant party, the Court shall order the defaulting party to fill out a Fact Information Sheet under oath. This sheet lists the assets, sources of income of the defaulting party so that they will be easier to find and seize.
- Writ of Execution. Once a judgment is entered and registered with various government agencies, the compliant party is entitled to a writ of execution. This is an order of the court that directs the law enforcement to seize and sell the defaulting party’s property in order to satisfy the judgment amount. In order to pursue this remedy, the party seeking enforcement will need to identify and locate the property and post a sufficient bond with law enforcement. In Stuart and throughout Florida, writs of execution are enforced by the county sheriff.
- Writ of Garnishment. A creditor-spouse is also entitled to a writ of garnishment which is served upon the defaulting party’s bank (or anyone else holding property on his behalf). This writ orders the bank to freeze the defaulting party’s funds and report the amount that they are holding so that they can be seized by the creditor-spouse to pay the judgment.
- Continuing Writ of Garnishment. If the defaulting party is not a “Head of Family” (responsible for one or more dependents), the creditor spouse can obtain an continuing writ of garnishment which is served upon the defaulting party’s employer. This writ will result in the seizure of the defaulting party’s wages up to the maximum amount permitted by federal law (generally 25%).
The enforcement of a divorce judgment can be a complex and difficult procedure and therefore it is important to have an experienced and aggressive attorney to guide you through the process. The members of the Ferraro Law Group have been assisting divorce clients in Stuart, Florida and throughout the Treasure Coast for more than thirty years.