Not receiving the relief promised in your Judgment of Divorce (JOD)?

Spouse still hasn’t paid the correct monthly amount of child support or share of the children’s out of pocket medical?

If your ex-spouse is not complying with the court order, you must act swiftly to file a Motion to Enforce asking the court to mandate the other party’s compliance. Your delay or inaction could be interpreted by the court as acceptance of your ex’s “counter-offer” (via behavior).

Can you rely on your Judgment of Divorce or other court-ordered relief? Read on for a cautionary, hair-raising tale.

The Story

In a recent post-divorce matter, the parties received a JOD that, among other things, required the father to make specific, weekly child support payments and equally contribute to un-reimbursed medical expenses for the child. Subsequent to receiving the Order, the parties had a sidewalk conversation in which child support was discussed and, according to the father, reduced. The mother denies that any agreement was reached in this brief conversation. Thereafter, the parties, through their attorneys, negotiated but failed to reach any agreement modifying the child support. Nevertheless, the father continued to pay the lesser amount and the mother continued to accept it. The mother did not return to court to file a motion to enforce the JOD.

Should the mother have gone immediately to court to enforce the JOD’s higher amount of child support? Should the father have sought the permission of the court to reduce the child support amount? With whom should the burden lie?

A recent case dealt with these issues. A Union County, New Jersey court found that the burden, in fact, lay with the party relying on the Order to ensure enforcement. That is, the party NOT seeking to change the court Order is responsible for asking the court to intervene. Does this create a [dangerous] precedent of non-reliance and non-adherence to court Orders? A denigration of the judicial authority from Orders to mere gentle recommendations?

In the case at bar, the court applied the Doctrine of Laches (“sleeping on one’s rights” without good reason, to the detriment of other side) holding that the mother’s 4-5 year delay in seeking payment for the balance of underpaid child support and reimbursement of the child’s out-of-pocket medical expenses caused her to forfeit her rights to any recovery.

So why didn’t the mother seek court intervention five years earlier, as soon as the father failed to comply with the agreement?

She had several reasons, all pertaining to a thoughtful cost/benefit analysis, considering the time and expense of pursuing judicial intervention. The mother:

• was already financially and emotionally depleted by prior extensive, acrimonious, frustrating litigation;
• was the primary breadwinner and couldn’t compromise her career with continued absences and the additional stresses of continual conflict;
• was primary custodial parent, and reckoned that continuous conflict with the child’s other parent during her son’s adolescence was neither a wise nor a loving choice (getting on with their lives was);
• appreciated that she might have to spend thousands to recoup hundreds, with no guarantee of a favorable outcome;
• was informed by history that the other party would stonewall her at every turn;
• reasoned that a financial exchange was imminent in approximately four years, whereby the Order required her to pay the father his share of the marital home. She expected to negotiate credits for underpayment of child support and their child’s medical, extraordinary, and college-related expenses at that time. Seems perfectly reasonable.

So rather than allowing for a reasonable accounting to take place once funds were clearly at the parties’ disposal to negotiate, the court applied, sua sponte (i.e. from the bench, without the argument introduced by counsel), the Doctrine of Laches. Although it is entirely unclear how the father had been prejudiced in any discernible way by NOT paying what he was court ordered to pay for several years, the Judge nonetheless upheld [himself] on our Motion for Reconsideration.

What are the ramifications going forward? Our next article explores just that.

Your Rights — Going Fast! Part 2

The Ramifications (and Rants)

The conundrum: our legal system has two opposing principles.

First: it encourages parties to engage in alternative dispute resolutions to resolve conflict without court intervention (sparing the overburdened courts).

Second: the court insists that parties seek immediate court intervention in order to protect their rights.

The party who follows principle one risks being denied her rights based on principle two. An individual who invests time attempting to resolve a conflict prior to seeking court intervention may risk the court-imposed remedy to which he was entitled.

If the party brings a matter to court, however, he will often be instructed to go work things out with the other party (and attorneys) before coming back before the judge.

If you’re confused, you might be sane.

Relying on a judgment or an order is far from the solid ground we once thought.

Precedentary Residue and Open Questions

• Should we be incentivized or disincentivized to resolve conflicts outside of court? A delay in seeking judicial enforcement (by how long is unclear) can be interpreted as having “prejudiced” the other party. Here “prejudice” means affecting the non-moving party so that he would be disadvantaged by the delay, so that upholding the terms now would create an unanticipated burden. Instead of the public policy that supports families in resolving divorce issues through mediation, settlement panels, and the final imprimatur of the court, must we start to alert families that their only “safe” remedy is in taking immediate legal action? Are we required to inform clients that it may ultimately benefit them to ignore the unfavorable terms of their JOD, or to deliberately delay compliance with their Agreement, frustrating the other party so that he will be forced to either accept the new terms or retain counsel? How do we protect our clients’ remedies and encourage them to respect resources and resolve all they can outside of court?
• Flexibility and post-divorce relationships. How can anyone relax into and depend upon their Marital Settlement Agreement (MSA) and Judgment of Divorce (JOD)? How is one parent to afford the other any flexibility (or even common courtesy) with regard to a scheduled payment or parenting time? Even a benign variation from the Agreement can be cause for concern: is immediate court intervention needed? Did I just accept a modification? Or can he pay me the $10 next week…?
• Finality. Is your original “Final Judgment of Divorce” not so aptly named? Might it better be entitled: “Hello from your Judge: A gentle suggestion of what you might consider adhering to, at your discretion, unless you come up with a better, self-serving idea and choose to directly defy this Order, which follows?” That would wreak havoc on the formatting…
• The vulnerable. Will our legal system provide checks and balances to protect the vulnerable party, or provide the imperious party extra leverage? While it once seemed logical that the party seeking to change a court order would have the burden of soliciting court intervention, this case held that the obligation lies with the party simply seeking the court to uphold what was already promised. Is this the dawn of the bullying-spouse-take-all doctrine? Do we need the court at all? Why not just have a duel or whatever conflict resolution strategies they employ on Game of Thrones?

When it comes to getting your court ordered relief – time is not on your side. And neither, it seems, is the court.

Your Rights — Going Fast! Part 3

“In heaven we have justice. Here on earth, we have law.” So said my Torts Professor, and so it seems indicated by the case we continue to discuss in part three of this article.

This case raised so many issues as to the limitations and arbitrariness of the legal system, it bares summarizing the main elements here and mentioning any we might have missed.

While the court might not be moved to enforce certain terms of an Agreement, it can nonetheless implement others, seemingly solely at its discretion.

Cherry-picking and Child Support:

In our case, the court relied on the Judgment of Divorce (JOD) to uphold some terms while dismissing others as untimely. The court upheld the obligation of the mother to pay the full amount to buy out the marital home while ignoring the father’s obligation for back payment of child support.

Is child support no longer a big deal? Until now, it was widely and consistently held that the rights of a child to be supported are sacrosanct. Both law and public policy consider children to be among the most vulnerable population, and the court is charged with their protection. In this instance, the court assigned property rights (the marital home) more weight than the child’s rights (to be supported).

Finality:

Orders are meant to be final and dependable to provide litigants a sense of certainty from which to make future informed decisions and manage their lives peacefully and productively. Closure fosters social stability rather than civil unrest. Imagine the chaos and unrelenting angst generated if litigants must vigilantly, relentlessly defend the terms of their JODs. Imagine how hyper alert as to the other parent’s compliance with the terms of the JOD – because any flexibility or fluidity or even cutting your ex some slack could result in your losing the bargain you were promised. How will that affect post-divorce parenting relationships and child rearing? I venture, not well.

A victory for the party with the upper hand:

A party who gets a judgment he dislikes can be encouraged to ignore it. If the other party hasn’t the wherewithal, time or acumen to pursue the matter in court, he can potentially run out the clock or wear her down, getting his way after all. Not only can the will of a bad actor triumph over his adversary, but it can also supersede the court’s authority!

In fact, let us turn to this final point: the court as authority.

When our trust of one another has broken down, the court can provide protection we can count on. Our social order rests on our reliance on the court as an authoritative body. If people are disincentivized to follow court orders, what do we have if not pandemonium and lawlessness? I shudder to think!