“He is not paying his child support and alimony”
What good is going through the Court to get an order to collect child support and alimony if your ex (who is a non-custodial parent) is just going to ignore it?
The answer is — very good.
You just need to make sure you active to enforce the order and if, needed, hold your ex in contempt.
Florida family court takes the payment of child support and alimony seriously. Very seriously. And a spouse who fails to pay without a valid justification can get in big trouble financially.
And they can even end up in Jail.
Below we go over the steps you need to take when your ex won’t pay alimony or child support.
Make Sure You have a Child Support Order.
The first step to making your ex pay support is to have an order signed by a Judge that requires payment.
Until you have an order, you don’t have a requirement.
Without a requirement to pay, you are simply hoping for the good graces of your ex. And that is no way to live.
If you don’t have an order for payment, go here for more information on how to establish an order for child support or alimony with your former spouse.
Have an order? Good. Now go back and review the order to make sure that it is indeed child support or alimony that is ordered, and that unpaid child support is past due.
Assuming payment is past due and you, therefore, have an ex that is violating a judicial order, it’s time to gather evidence to prove your point.
Gather Records that Prove Non-Payment.
Now you want to gather the proof that your ex is failing to pay. This is usually easy to do as your ex should be paying by check or money order, transfer to a bank account, an income withholding order, or depositing money with the State of Florida.
If your ex pays by check or money order, you will want to go online and pull records from your bank that show that the child support payment has not been deposited into your account.
You can do this by pulling bank records for the time period in question. Deposits for most banks are listed at the top of each monthly statement, and a quick review of records can prove that payment was not made.
If needed, don’t be afraid to pull cancelled checks. Remember, your goal should be to get your ex to pay now and, with any luck, pay in the future. Before you go see a lawyer, you want to make sure you have gathered exactly what the lawyer needs.
Ask the Court for the Child Support Enforcement Order or Hold Your Ex in Contempt of Court.
Now it is time to ask the Court to enforce child support and possibly hold your ex in contempt of court.
Often this is done through a family law attorney. But whether you go it alone or with a lawyer’s help, you are going to be filing a pleading with the clerk of the court to re-open your closed case.
As a technical matter, you can make these requests with a Motion for Enforcement, a Motion for Contempt, or a Motion for Order to Show Cause. In both cases, you are asking the Court to use its powers to fix the problem.
A Motion for Enforcement is the nicest option. Your remedy is straightforward — you want the problem fixed and you want your ex to comply with the Court’s directives.
In a Motion for Contempt, you are taking it up a notch. You are asking the Court to not only make your ex comply, but also hold your ex in contempt. The purpose of contempt is to compel compliance with a court order or compensate you because your ex is not doing what he or she is supposed to do.
You can even request the Court put your ex in jail if he or she does not pay the amount required.
An Order to Show Cause is the same idea, but the request comes from the Court instead of from you. You ask the Court to issue an Order to Show Cause, and the Court signs the order, commanding your ex to come to Court and “Show Cause” regarding why he or she is thumbing his or her nose at the court.
Once a motion is filed, you need to get it to your ex. This can be done by traditional service of process with a process server, but it is not necessary.
Finally, you will call the Judge and get available dates and times to present your case to him or her.
At the hearing, you present evidence to the Judge proving your case. Your attorney has the ability not only to give legal advice, but also to cross-examine your ex and ask him or her questions related to the failure to pay.
If everything goes well, the Judge should then order your spouse to comply. The Judge will often order the ex to pay X amount of money within Y amount of time.
To really drive home the point, the Judge could order that a warrant be issued for the arrest of your ex if payment is not made by a certain date.
Also, the Judge has the ability to order your ex to pay a fine and attorney’s fees to you for having to hire a lawyer to fix the problem.
Sometimes your ex learns his or her lesson, and the problem never happens again.
But sometimes it is clear that this is going to be an ongoing problem. Below are some ways to fix the problem so it does not happen again.
Ask for an Income Withholding Order.
If your ex won’t pay his child support or alimony, just cut him out as the middleman and get the money from his employer through an income withholding order.
An income withholding order is an approved method to automatically require an employer to deduct a certain amount on a monthly basis from your ex’s pay before the paycheck goes out.
You are taking money “off of the top” in much the same way as health insurance or 401(k) deductions.
This can be done with a simple order executed by the Judge directing the employer to withhold the money. The process often takes four to six weeks to complete.
Garnish Your Ex’s Wages.
Similar to an income withholding order, you can request a garnishment of your ex’s wages or other money such as bank accounts. Unlike an income withholding order, a garnishment is available only for future payments and not past due payments. However, you can garnish money from a bank account.
For example, consider the situation where your ex is selling a condo. The proceedings will be deposited into your ex’s bank account. A court can order that the money owed is withdrawn from your ex’s bank account and deposited into your bank account when the condominium sells.
Ask for the Sale of Pre-existing Assets.
In certain circumstances you can request the Court order your ex to liquefy assets in order to pay the alimony and/or child support award.
Ask for a Lien on Property.
What if your ex has money in real property and money is not available to garnish? You can ask the Court to put a lien on the property. This way, the property cannot be sold and will not have a “clear title” until the debt is repaid.
Likewise if your ex has a rental property, you can ask the court to order that rental proceeds be paid to you directly from the tenant.
Ask to Put Your Ex in Jail Until He or She Pays the Money.
The home run remedy to the problem is to ask that your ex be thrown into jail unless and until payment is made. This is often the swiftest but most extreme remedy to get payment.
Defenses to Making Payments
Of course there are certain defenses your ex may have that might preclude the remedies above. For example:
Inability to Pay: You can’t squeeze blood from a rock. If your ex really cannot pay because he or she is unemployed and doesn’t have any assets, this can be a defense. Economic misfortune that is not self-imposed is an absolute defense to contempt. What matters is whether the inability to pay is willful.
If your former spouse is in a situation that he or she just can’t pay even with the best intentions, then the court will not hold your ex in contempt.
Of course, this does not mean the obligation just goes away. The obligation continues unless your spouse gets the original order modified.
However, it does keep the Court from sending your ex to jail.
Child Living With Your Ex
What if the child is no longer living with you, but is living with your ex full-time? This is and can be a defense for your ex against any child maintenance obligation.
Deficiencies in the Order
A technical defense to contempt exists when there is deficiency in the legal order. An order that is too indefinite, overbroad, or does not define when payment should be made may need to be fixed before making a motion for contempt.
Generally, the order to pay must have a specific time and place by which the payment must be made in order to avoid contempt. Otherwise, a motion for enforcement or clarification is needed.