WHAT TO DO WHEN THE NON-CUSTODIAL PARENT DOES NOT FOLLOW THE DIVORCE JUDGEMENT

Whether you divorce by settlement agreement or a judge orders divorce terms after a trial, the resulting judgment is a legally binding court order. Your settlement agreement is incorporated into your judgment. If your ex doesn’t abide by its terms, either for custody or child support, you have a few options.

Problems With Child Support

If your ex isn’t paying child support, your easiest remedy is to sign up for your state’s child support services. State services collect from your ex, often through an income withholding order, so it’s more difficult for to fall behind with his payments in the first place. His employer must deduct his support from each of his paychecks and forward it to the state. The state then transmits the payments to you and keeps track. If your ex falls behind for such reasons as being out of work, the state may intercept his tax refund, report to the credit bureaus, or place liens against his property.

But state services can be slow because they often labor under a huge caseload. If you want your money sooner rather than later, you can take your ex back to court yourself. Your ex will have to appear before a judge and explain why he hasn’t paid. The judge may work with him if he’s suffered some financial hardship that genuinely prevents him from paying child support. This doesn’t mean the judge will vacate or erase the support terms of your divorce judgment so you won’t get paid. It means he’ll put a plan in place by which your ex can eventually catch up with his arrears (the unpaid balance he owes you) and get back on track.

If he doesn’t have a good reason, or maybe he just doesn’t want to pay child support even though he has adequate income to do so, the judge can hold him in contempt of court and he may do jail time. Of course, if he’s in jail, he’s not earning income with which to pay you, so this is often a last resort. Most judges will first order income withholding or take the same measures your state’s child support services would take, such as tax refund interception. 

 Problems With Parenting Time

The solution to violations of the visitation or custody terms of your judgment is much the same as with child support. You might think to call the authorities if he’s late bringing the children back after visitation, and you should do so if the situation seems dire, such as if you can’t contact or find him and you have reason to believe he doesn’t intend to return them at all. But think twice before you contact the police for anything less than an emergency. In most cases, the authorities will advise you to take your ex back to court, just as you would for child support violations. Many police departments take the position that custody is a civil matter, even with a court order, and should therefore be handled in family court, not criminal court. Even if they do agree to contact your ex and urge him to bring the children home, this is likely to frighten your children if they do so in person, particularly if they’re young. Keep in mind too, that if your divorce judgment simply states that your children’s other parent has “reasonable” visitation rights or something similar, the police can’t enforce it because your judgment doesn’t set out a concise schedule.

That said, if you do involve the police, be sure to ask for a copy of the incident report. This is evidence of the problem, which you will need should you ultimately take your ex back to court. If your judgment doesn’t set out a definitive parenting time schedule, you can ask the judge to amend it to include one.

If you facing an enforcement issue, call the Law Offices Of Peter Van Aulen for a free consultation.

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Peter Van Aulen is certified by the New Jersey Supreme Court as a Matrimonial Attorney.

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