For most couples, it is a great relief to finally receive your Judgement of Divorce. It means that many things that were up in the air are now clear: your child support or spousal support payments, your living situation, your visitation schedule, and even your retirement funds. However, just because the order is written into law does not mean that both parties always follow it. So what happens when one party breaches their Judgement of Divorce?
There are two potential remedies that someone can take when their ex-spouse is breaching their underlying order. The first is to find the other party guilty of civil contempt. This begins with filing a motion of contempt. It could lead to up to six months in jail, although that outcome is rare. It is much more common that the spouse protesting the breach will receive a money judgement that they could attach to their bank account.
The second potential remedy is to resettle the Judgement of Divorce. This will allow you to allocate any potential money that was owed from the breach. The Judgement of Divorce is a contract that both parties enter, so it cannot simply be thrown away or disregarded. It can be resettled, which is advantageous to both parties in some situations. It can also be modified, although that is a rare occurrence without extraordinary financial hardship.
Nine times out of ten, the breach is financial in nature. It is often a failure to pay maintenance. When someone comes to us with a potential Breach of Judgement of Divorce case, the process begins by reviewing the language of the original Judgement. It is always important to make sure that everyone has the correct understanding of the language and the other party did have an obligation that they failed to meet.
Equally relevant to the topic is whether the other party is self-employed or works in cash, which will make the case more complicated. It is less common that W2 employees breach their financial obligations, since their payments are often automatically taken out of their paychecks.
From there, we will draft a motion if the case looks successful. At that point, the Judge sets a date for conference and we begin compiling evidence. Eventually, we will go in and negotiate a remedy, which is often a financial switch. The end result is hopefully money or damages for the client who was harmed by the breach. That payment can come in a lump sum or a GDRO that gets transferred to your 401k even if the other party does not currently have steady wages.
The Judgement of Divorce is a contract that both parties enter into when they leave a marriage. When that contract is broken, it is important that there are consequences and that things eventually return to normal for both parties. If you have been affected by a breach of Judgement of Divorce, contact Andrea L. Gamalski Attorney & Counselor at Law today. We care for you, so that you can care for your family and your home.
Andrea L. Gamalski Attorneys at Law
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