Frank had thought the divorce was over with the entry of their divorce judgment. He hadn’t realized that in a way, the divorce was just beginning. The divorce had been hard. Frank and his wife had a lot of issues, financial and personal, to resolve. But with the divorce judgment’s entry, Frank had expected a reprieve from their haggling. Instead, with the judgment’s entry, other issues suddenly arose. Frank just hoped that those new issues would pass swiftly. Wasn’t the divorce judgment supposed to end the fighting?

Implementation

Judgments of divorce are indeed final. They conclude the divorce case. But divorce judgments are not entirely self-executing. A judgment of divorce instead often requires the parties or their attorneys to carry the judgment’s terms into effect. Implementing the divorce judgment may take days, weeks, or even months of administrative tasks. And if one of the divorced parties doesn’t do their part, the other party must either do it for them through other means or get the court’s help enforcing the judgment. Skilled attorneys try to anticipate implementation issues and ensure that their client can accomplish what their client needs to carry the divorce judgment into effect, without relying on a non-cooperating opposing party. Often, it’s easier to do something yourself than to try to force someone else to do what they should have done. The same is true for judgments of divorce.

Issues

Implementation issues surrounding a judgment of divorce can run the gamut. Anything in the divorce judgment, from child custody, child support, and parenting time, to spousal support, changing title to awarded real or personal property, and properly reallocating accounts, could become a post-divorce issue. So, too, can post-judgment restraints. The conclusion of a divorce proceeding with a judgment ordinarily terminates interim orders, including interim restraints. But if the judgment continued any restraints or imposed new ones, the restrained party may soon violate them after the judgment enters. If you cannot manage post-judgment issues on your own, renew your retainer agreement with your attorney or retain new counsel for help. Don’t win the battle but lose the war. Implement your divorce judgment so that it’s more than merely an impressive piece of paper.

Children

Enforcing child-support obligations may occur through a Friend of the Court office or similar local unit. You may find enforcement assistance available to you through that unit and its assigned assistant prosecutor or other attorney official. That unit or your own retained attorney may also be able to invoke statutory rights to recover child-support arrearages out of income tax refunds and to threaten license suspensions if the obligated parent does not pay. Enforcing child custody and parenting-time rights typically involves filing a petition with the family court that entered the judgment of divorce, asking for its enforcement. The judge would likely hold a hearing, determine violations, and threaten contempt sanctions for further violations, to get the parties back on course in complying with the judgment. See the motion for show cause to hold a party in contempt, among the forms at the end of this guide.

Deeds

If the judgment of divorce awards title to the marital home or other real property to one spouse, and the property’s current deed reflects a different arrangement, the parties must execute and record a new deed accurately reflecting the judgment’s award. The party gaining the interest usually carries the ball forward, preparing the deed and presenting it to the party losing the interest for the losing party’s signature. If the losing party refuses to sign, the party owed the property transfer may petition the court either to force the losing party to sign the deed, on threat of contempt or other sanctions, or for a recordable order. A recordable order would recite the transfer of title in a reliable form that the county register of deeds can accept for filing in the real property records, accomplishing the transfer. In other words, if you can’t get a signature, you should be able to get a recordable order removing the need for a signature. Let your attorney help seek and prepare the recordable order.

Accounts

A similar process ensues for checking, savings, and brokerage accounts that the judgment of divorce requires the parties to reassign or reallocate. The party gaining the account interest would ordinarily guide and encourage the party losing the interest toward the proper execution of account agreements at the bank or other financial institution. If the party losing the account fails or refuses to do so, the party gaining the account may petition the court either to force the losing party to sign the account agreements on threat of contempt sanctions or for an order that the bank or other financial institution can accept in lieu of a signature. In such petitions, the moving party routinely also requests that the judge award the costs of having to file the petition.

Proceeds

If the judgment of divorce requires the liquidation sale of real or personal property, to award the proceeds to one party or allocate between the parties, the parties may have to execute real estate agent agreements, auction agreements, or other contracts to accomplish the sale. If one party refuses to cooperate in the sale, the other party may petition the court either to force the party to participate on threat of contempt or for a special order that real estate agents, title companies, buyers, or others will recognize to facilitate the sale. Escrowing sale proceeds with real estate agents, title companies, auction houses, or other professionals facilitating the sale can frustrate a party from absconding with sale proceeds owing to the other party. If the other party does abscond, then it’s back to court with a petition for enforcement.

Contempt

As indicated above, contempt sanctions are one lawful way to force an intransigent party into cooperating in carrying out a judgment of divorce. Judges have authority under certain circumstances to enforce their orders by holding violators in contempt of court. Again, see the motion for contempt sanctions among the other forms at the end of this guide. Judges must ordinarily hold a show-cause hearing giving the party charged with the violation an opportunity to respond or correct the violation, before imposing contempt sanctions. Contempt sanctions can include further orders, monetary penalties, and incarceration either for a specific brief duration or until the party agrees and arranges to comply. A night in jail can be quite convincing. Contempt sanctions, though, are usually a last resort. Judges will generally try everything else at hand first, before holding a party in contempt, especially if the sanction involves incarceration.

Receivers

If your former spouse refuses to comply with the terms of your judgment of divorce as to disposition of a business or other interest your former spouse controls, you may be able to have the court appoint a receiver to take over the interest. A receiver is a professional skilled in accounting for business or similar interests. Judges have equitable authority to appoint receivers to take control of disputed property, to carry out judicial orders. Your petition to the court for appointment of a receiver may be all it takes to have your former spouse comply, given that appointment of a receiver means losing control of the interest.

Garnishment

If your former spouse refuses to make payments to you as the judgment of divorce provides, and your spouse earns a paycheck or receives income from other sources, you may petition the court for an order of garnishment to have a portion of the income or other payments paid into court or paid over directly to you. See the request and writ for garnishment form among the other forms at the end of this guide. You may also be able to garnish your former spouse’s bank or other accounts to secure payment. Garnishment orders direct the payor, whether an employer or other individual or entity, to confirm the payment obligation, notify the payee of the garnishment, and pay the sums over for the garnishing party’s benefit if the payee fails to object. Again, garnishment of wages or accounts can quickly get the attention and compliance of a party who is refusing to make good on payments under a judgment of divorce.

Execution

If your former spouse refuses to make payments to you as your judgment of divorce provides, and your spouse does not have wages or accounts you can garnish, but your spouse has valuable non-exempt property, you may petition the court for an order of execution on that property. An order of execution secures the property for liquidation sale, with the proceeds applied to satisfy the obligation. An order of execution may authorize the sheriff to seize or secure the property, for auction or other fair-market sale. Once again, the threat of execution may get your former spouse’s cooperation in making or arranging payments due under your judgment of divorce.

Fraud

If you find that your former spouse made material misrepresentations during the divorce proceeding with the intent and effect of causing you to give up property-division or other rights in the judgment of divorce, you may be able to gain relief from that injustice. You may file a post-judgment motion for relief, requesting that the court modify the judgment to relieve you from and correct the unjust term that your former spouse’s fraud induced. A post-judgment motion for relief, based on fraud in the inducement, does not seek to enforce the judgment but rather to modify and correct it for enforcement of proper obligations, free of the inducing fraud. 

Changes

You may also find occasion to petition the court to modify the judgment of divorce based on a change in circumstances. Changes commonly have to do with child custody, child support, parenting time, or spousal support. But changes can also have to do with other judgment terms, such as shared business interests or joint interests in the marital home or other real or personal property. Circumstances constituting a material change could include remarriage of one or both of the former spouses, illness or injury and disability of one of the former spouses, or bankruptcy or other financial reversals. Judges have neither the authority nor the inclination to modify judgments simply because a party has a change of heart or mind. The party seeking modification must generally show a significant material change that the judgment did not anticipate.

Key Points

• Judgments of divorce may require parties to implement their terms.

• Parties to a divorce judgment may petition the court for enforcement.

• Enforcement may arise around child custody, support, or visitation.

• Enforcement issues may also arise around property deeds and titles.

• Enforcement issues can also arise around transfers of accounts.

• Enforcement can also arise around property sale and proceeds division.

• Judges may hold disobedient parties in contempt with fines and jail.

• Judges may appoint a receiver to take over a business or other interest.

• Judges may garnish wages or accounts and order seizure of property.

• Fraud inducing the divorce judgment is a ground for relief from it.

• Changes in circumstances may warrant modification of a judgment.

Read Chapter 20.