By Adam T. Kronfeld of Duff & Kronfeld, P.C. posted in Family Law on Wednesday, March 13, 2013.
If your former spouse is obligated to pay you spousal support, child support, or both, but fails to do so, there are a number of options available to you to enforce that obligation. If the obligation only exists in the form of a settlement agreement-a contract signed by you and your former spouse but not by a judge- then your only option is to file a lawsuit against your former spouse and try to obtain a judgment against him or her for the past due payments. Once you have obtained a judgment, you will have to take the initiative in trying to collect it, such as by garnishing your former spouse’s wages or bank accounts.
Much more effective is the enforcement of an obligation that is contained in a court order signed by a judge. Armed with such an order, your enforcement options are more plentiful, and are often more likely to result in recovery of the money that is owed to you. When a court has ordered a party to pay spousal and child support, that party’s failure to comply with the court order can result in that party being found in violation or willful contempt of the court’s order. When that occurs, not only will he or she likely be ordered to repay the amount owed, but also to reimburse you for attorney fees and other reasonable costs that you have incurred in enforcing your right to those payments.
Logistically, to enforce the support obligation, you or your attorney must first file a Petition for a Rule to Show Cause (contempt action), in which you, under oath, allege that your former spouse has failed to comply with a court’s support order. The court will issue a document known as a Rule to Show Cause, signed by judge and served on your former spouse, which compels your former spouse to come to court and explain why he/she has not complied with the court order. Unless your former spouse can show some legally acceptable reason why payment has not been made, the judge will typically establish a repayment plan for the amount owed and require that he or she repay you some or all of the expenses that you incurred to pay to bring him or her back to court. In circumstances where the failure to pay is particularly egregious, where a party is a repeat offender, or where the party again ignores the court’s order, the court may very well incarcerate the nonpaying spouse until he or she meets certain conditions for his or her release. Typically those conditions would include paying a significant portion of the arrearage and satisfying an ongoing repayment plan, subject to periodic review by the court.
If you have a spouse who refuses to pay notwithstanding multiple orders from a court, or even incarceration, but you know that your former spouse has income or assets that could be used to satisfy the arrearage, you can have the court enter an order granting you a judgment against your former spouse, then use that judgment to garnish your spouse’s bank accounts and income, or use other methods to seize and sell other property of his or hers. However the rule to show cause is the more effective enforcement mechanism, because it gives the court broader discretion to craft a remedy that will be effective in your case, not the least of which is passing on the cost of any attorney fees to the spouse in violation of the order.
The foregoing is meant to be a simple overview of certain enforcement options available under a very generic circumstance. You should speak to a qualified Virginia attorney about your specific circumstances, as the particular situation you face may necessitate or preclude certain specific enforcement strategies.