Josh2.ashxIn an ideal world, once a divorce judgment was entered both parties would dutifully abide by its terms and fulfill each of their duties and obligations. Of course, in an ideal world there wouldn’t be any divorce in the first place so it would be a moot point. In the real world, the entry of a divorce judgment is often just the first step in a party’s long journey to obtain all that he or she is entitled to.

When a party defaults on his or her obligations with regard to the property division portions of divorce judgment, the compliant party is limited to the remedies that would be available to other creditors (i.e. credit card companies and banks). For an explanation of those remedies and tips on how to secure assets awarded in a property settlement agreement, refer to Enforcing a Divorce Judgment.

When it comes to alimony and child support a party has several additional options. The most standard option includes filing a motion for civil or criminal contempt and asking that the defaulting party be incarcerated until he or she satisfies their obligations under the agreement. However, this remedy requires a judicial finding that the defaulting party has the ability to pay and has willfully refused to do so. This can be a costly endeavor and, in this economy, many judges are reluctant to use incarceration absent clear and unequivocal proof of an ability to pay. Additionally, judges are cognizant of the fact that incarcerating a party for failure to pay past support will likely preclude them, as a practical matter, from being able to pay additional support in the future.

Another option to obtain payment, while avoiding all of these problems completely, is the use of a Qualified Domestic Relations Order to seize the funds directly from the defaulting party’s retirement account. Many employers offer a 401(k), profit sharing or similar accounts and therefore it is very likely that the defaulting party has an account set aside for retirement. Under the Retirement Equity Act, Congress made these funds available for the payment of alimony, child support or property division in an initial divorce proceeding. Further, in the context of a proceeding to enforce a divorce judgment the Court can use, otherwise protected, retirement assets to satisfy alimony and child support awards.

In order to access these funds, you will need a Qualified Domestic Relations Order (QDRO) which is a special type of court order which complies with state and federal law while conforming to the individual terms of the particular retirement plan. The drafting of a QDRO should be handled by a competent divorce lawyer who can assist you with ensuring that your rights are preserved.

The divorce lawyers at the Ferraro Law Group have been assisting clients in Stuart, Florida and the surrounding area with their alimony, child support and divorce needs for more than thirty years.