Billie Tarascio Article

Spousal Maintenance Enforcement

When spousal maintenance is awarded, whether through settlement or at trial, most clients believe they can close the book on that particular chapter of their case. In a perfect world, where debtors always pay their debts, they would be right.  Unfortunately, we don't live in a perfect world. On the bright side however, if you have been awarded spousal maintenance and your ex is not paying, you are not up the creek without a paddle. This article will explain the process and tools you can use to enforce your spousal maintenance order.

Spousal Maintenance enforcement cases boil down to four stages: (1) determining whether there is a valid claim; (2) settlement negotiations; (3) obtaining a money judgement; and (4) enforcing the money judgement.

Have three years past since the order terminated?  This has become a sort of awkward icebreaker for my spousal maintenance enforcement consultations because under Arizona Law (A.R.S. §25-533) the spouse who is owed money is barred from requesting a judgement on spousal maintenance arrearages (past due support) if more than three years have passed since the order terminated. This is a big deal because virtually all of the tools available to a spouse seeking to enforce spousal maintenance require an underlying judgement. The good news is that if you request a judgement before the statute of limitations expires, you can seek inclusion for all of the money owed to you. 

Almost every spousal maintenance order contains two important terms: (1) the amount of the award; and (2) the duration of the award.  Generally speaking, by operation of law, a spousal maintenance order is deemed to terminate upon the expiration of the duration specified in the order.  For example, if an order awards $1,200/month beginning January 1, 2016 for four years, the presumed termination date is January 1, 2020.  For cases where the spousal maintenance fluctuates over time, e.g. $1,200 for year one, $1,000 for year two, and $800 for year three, the order terminates when the last spousal maintenance payment is due--in this case at the end of the third year.  It should be noted that if a Petition to Modify is filed prior to the expiration of the presumed termination date, a new termination date may be established if the order is successfully modified.

If you remember one thing from this article, remember the importance of requesting a judgement within three years of the Order’s termination date because “if you don’t use it, you lose it.”

Settlement

When a person owes you money, there is a natural desire to hold that person accountable, often through the pursuit of legal action.  As a result, settlement negotiations are under used in spousal maintenance enforcement proceedings because of the sentiment that if you settle, you are letting the other party "get away" with not paying what they owe you. While a settlement may absolve your ex-spouse from some portion of the past due support, there are several practical reasons why settlement is worth exploring.

First, if you are considering filing to enforce spousal maintenance, then you are already in a situation where your spouse has failed to pay you money pursuant to a court order. Even if you obtain a money judgement against your spouse, which undoubtedly enhances your ability collect, there is no guarantee you will collect all or even a portion of the money owed to you.  Moreover, there is usually a high cost associated with collecting against a judgement. For these reasons, I often encourage clients to explore a lump sum payout that is discounted by the anticipated costs of collecting the money. For example, if a client has a $50,000 claim, but the process of collecting the full amount will likely take three years and cost $10,000, they may want to consider accepting a lump sum payment of $40,000 in order to avoid the risk, cost and time associated with collecting the full amount.

Obviously, settlement is not appropriate or possible in every case, but it is usually worth exploring as an option. As a bonus, because family court is crowded with high conflict litigants, judge's usually love it when a party makes good faith efforts to resolve a matter amicably. As a result, pursuing a reasonable settlement can bolster your claim for attorney's fees and costs if the matter proceeds to trial.  Although settlement negotiations are generally confidential in order to promote an open and meaningful dialogue between the parties, a written settlement letter can be used to prove that the other party has been unreasonable, which is a factor the court considers when deciding whether to award attorney's fees.

Obtaining a Money Judgement

It may seem counter-intuitive, but a spousal maintenance order by itself is not enough to begin legal proceedings to collect past due spousal maintenance. Before a spouse who is owed support may pursue collection, they must first obtain a money judgement. A money judgement is essentially a piece of paper signed by the judge stating that your ex-spouse owes you a specific amount in past due support and ordering him to pay that amount, subject to interest, within a specific time frame.

Obtaining a money judgement for spousal maintenance is relatively straight forward. Generally speaking, if you have an order requiring your ex-spouse to pay spousal maintenance in a specific amount and for a specific duration and your ex-spouse is not up-to-date on his payments, you can obtain a money judgement for the past due amount.  Usually, a spousal maintenance order will require payments be made to the Support Payment Clearinghouse for disbursement. This makes determining and proving the amount of past due support easy because the Clearinghouse will have a record of the payment history.  In rare cases where the Order does not require payment directly through the Clearinghouse, the burden is on the paying spouse to prove they have not missed a payment.  If the payor spouse cannot prove, either through financial records or testimony, that they are up-to-date on their obligation, the Court will generally issue a money judgement for the amount that is owed. 

Procedurally, to get a money judgement you must file a Petition to Enforce Spousal Maintenance. After you file and serve the Petition, the opposing party will have twenty days (thirty if they were served out of state) to file a Response. However, the opposing party is not required to file a Response. Once the time allotted for the opposing party to file a response expires, you can request a court hearing.  The initial hearing will not be a trial and depending on the specific language of the Order to Appear, evidence may or may not be allowed. The purpose of the initial hearing is to ensure everything has been filed properly, to give the parties an opportunity to explore settlement, and to determine how the case should move forward.  If the initial hearing was set via Order to Appear you must serve the other party with the Order to Appear at least ten business days prior to hearing date (even if you have already served them with the initial court documents).

At trial, both parties will be given equal time to present their case by calling witnesses and offering evidence. It is imperative to read the minute entry setting trial carefully to ensure you meet all of the deadlines and submit the exhibits properly.  One of the best ways you can prepare for trial is by writing your arguments down on paper as part of the position/argument section of your pre-trial statement. The pre-trial statement is your opportunity to give the judge a preview of your case before the trial begins. A well-crafted pre-trial statement can serve an outline to help guide you through the in court portion of your trial.  Remember to keep it simple. Virtually all successful spousal maintenance enforcement cases can be summarized as follows: there was an order requiring your spouse to pay you; your spouse failed to pay you; the court should hold your spouse in contempt and grant any relief it deems just and appropriate, including issuing a money judgement for the amount of past due support to be paid within thirty days.

Even though the theory behind obtaining a money judgement is relatively straightforward, depending on the Court's calendar, it can still take three to six months to get a ruling after the initial paperwork is filed.

Collecting on your Judgement

The first step to the collection process is to assess your ex-spouse's financial situation.  The amount and nature of your ex-spouses’ income and assets are directly proportional to your ability to collect the money owed to you.  If they have an employer, you can request a wage garnishment against his income.  If they have a retirement account, you can seek a qualified domestic relations order (QDRO) awarding you a portion of his account based on the amount owed.  If they own real property, you can obtain a judgement lien against the property.  If they have financial accounts, you can seek to levy the accounts for the amount owed.  You can have assets seized and sold to pay down the debt. My personal favorite: if they file taxes and are due a return, you can request an intercept. If you want to be creative, you can outsource and engage a third party debt collection agency to do the dirty work for you.  While the tools are many, almost all of the options require further court intervention and proceedings, the specific details of which are beyond the scope of this article.  However, once you get the collection engine going, it will very difficult for your spouse to avoid paying you without making substantial life changes and/or resorting to fraud. 

Creative Pressure Points

Spousal maintenance enforcement proceedings are given priority over all other civil actions. Likewise, your judgement will be given special priority if you file it with the county recorder.  Essentially, when the debtor’s line up to collect on your ex-spouse, your judgement trumps all except: judgments foreclosing or enforcing prior recorded mortgages, deeds of trust, contracts or conveyance of real property, security agreements, or other liens or encumbrances upon real or personal property created by the property owner and child support judgements. When you record your judgement you are announcing to the world that your ex-spouse owes you money and you have superior place in line against most debtors. As a result, not only does recording your judgement help protect your interest, it sends a powerful message to your ex-spouse that you are not going away anytime soon.  It should be noted that formal written judgements for spousal maintenance are exempt from the renewal requirements and are enforceable until paid in full.

To put additional pressure on your spouse, you can seek assistance from the department of economic security and the office of the attorney general, especially if you are receiving benefits from the state. Additionally, your ex-spouse’s failure to pay what he owes you can be reported to the three major credit bureaus.  Finally, while the decision to prosecute lies with the prosecutor, it is worth mentioning that failure to pay spousal maintenance is a misdemeanor criminal offense.

Contributing Attorney: Billie Tarascio litigates family law and domestic violence cases at Modern Law.