All divorces end with a final judgment from the family court, officially terminating the parties’ marital status. Many times this final judgment includes specific orders for the division of property and the payment of support. This can be incorporated as a Marital Settlement Agreement, or it can be decided by the judge, sometimes after a lengthy trial. Often parties do not comply with orders to divide property or pay support, either immediately after the final judgment or perhaps months or years later. If after trying to collect from your former spouse amicably, the debtor still fails to pay you the court-ordered amount, you can take a number of legal steps.
Getting Information About the Debtor’s Assets
Before you go any further, you should first find out if your former spouse/partner has any assets that you can go after in order to get the money he or she owes you. You may already know this information, especially if the final divorce judgment was recent. However, it may be several years with little to no communication with your former spouse, so you may have no information about his or her assets, such as bank accounts and/or property.
Once there is a judgment, the creditor can ask that the debtor appear in court to answer questions under oath regarding his or her financial status and asset information. The creditor can then use this information to start legal collection procedures. If the debtor does not show up at the hearing, the court may issue a bench warrant for his or her arrest. If the debtor shows up, you will have the chance to ask him or her questions about where he or she works and what bank accounts, property, belongings, stocks, or any other assets the debtor may have.
Once you know what assets the debtor has, you can take the necessary steps to try to collect from those assets.
Putting a Lien on the Debtor’s Real Property
A lien on real property means you are claiming an interest in the value of the debtor’s real property. You will not be paid automatically, but if your former spouse/partner refinances or sells the property, you may get a pay-out of your money with 10 percent yearly interest.
Collecting From the Debtor’s Wages
If your former spouse/partner is employed, you can get an Earnings Withholding Order to garnish his or her wages until you are paid. You have the right to collect up to 25 percent of the amount over the federal minimum wage that he or she earns. The Earnings Withholding Order has instructions on the back for the employer explaining how much money to garnish (take) from the debtor’s wages.
Your former spouse/partner has 10 days to file a Claim of Exemption. If he or she does file this claim, you have the right to oppose it.
Collecting Money From the Debtor’s Bank Account
You can get a levy on the debtor’s bank account. You will need to know the branch where the account is kept, and, usually, you also have to know the account number. You begin by asking the court to issue a Writ of Execution. Then prepare instructions for the sheriff/marshal explaining what you want them to levy (take)
Your former spouse must be served in person or by mail with copies of the writ, notice of levy, and the Exemptions From the Enforcement of Judgments. Your former spouse/partner has 10 days to oppose the bank levy before the sheriff sends the money to you. If he or she does file this claim of exemption, you have the right to oppose it. The court may have a hearing to decide whether to turn all or some of the money over to you as the creditor or let your former spouse/partner (the judgment debtor) keep it.
Putting a Lien on the Debtor’s Personal Property
You can have the sheriff take the debtor’s personal property and sell it at public auction to pay the debt. But, often, the cost of doing this is more than the value of the property, so make sure that the property you want the sheriff to take and sell will be worth all the effort and money.
One of the items of personal property you can put a lien on is the debtor’s car. After you put the lien, the sheriff would seize the car and sell it. This process is fairly expensive. Again, there often is not enough value, if any, left in the car to pay very much of the judgment. But if you decide you would like to do this, the car is sold at auction. Before you get paid, the sheriff’s fees will be paid, and your former spouse/partner is entitled to $2,300 of the proceeds of the sale (paid to him or her or to a lienholder if there is a loan on the car).
If you have further questions about how to collect money or property based on a divorce judgment, call Cage & Miles, LLP today to set up a free 30-minute consultation.