If you are contemplating a divorce or considering a marital settlement agreement (MSA), you might wonder what happens if your spouse fails to comply with the court’s orders. Many people proceed through the divorce process with the assistance of a typing service, paralegal, or other non-attorney. These non-attorneys often tell parties that they can always go back to court and pursue a contempt action against a spouse that does not comply with court orders. This advice like other types of legal advice often provided by non-attorneys is generally accurate but ignores important nuances that should be considered when evaluating an MSA. Contempt is only enforceable as a remedy for certain types of issues, so an effective marital settlement agreement should include enforcement mechanisms for situations where contempt is not an option.
Civil contempt is an effective remedy when a former spouse fails to comply with a family support obligation like child support, alimony, or attorney fee awards. The judge can actually sentence a non-complying former spouse to jail for failing to fulfill court orders regarding family support obligations. In this context, the non-attorney advice is reasonably accurate in terms of relying on contempt as an enforcement tool.
However, this can be terrible advice when dealing with the equitable distribution of property during a divorce. Certain property and debt division issues require future action, such as the future sale of a family residence or the division of a retirement account. However, these issues must be treated differently than child support and alimony. Contempt might not provide a viable enforcement option when a recalcitrant spouse fails to fulfill his or her obligations under the equitable distribution provisions of a divorce judgment. This means that the parties to an MSA should consider the possibility of non-compliance and include enforcement terms in the agreement.
In broad terms, property and debt division may not be enforced by civil contempt in a Florida divorce. The rationale for this general rule is that the Florida Constitution does not permit individuals to be incarcerated for non-payment of debts. When an equitable distribution award involves one party paying money to another, Florida courts consider the failure to make such a payment just like any other failure to pay a creditor.
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Because a former spouse who is owed money as part of an equitable distribution of property award is treated like any other debtor, this means that collection of the debt can be extremely challenging. When an experienced Florida divorce lawyer represents you, the attorney will understand the limitations of contempt as an enforcement tool. An MSA that predicates an equitable division of property on full compliance by a spouse or enforcement by getting in line with ordinary creditors can place individuals in a precarious financial position.
When you work with a knowledgeable family law attorney, he or she can use certain assets to secure future financial arrangements or have a Qualified Domestic Relations Order (QDRO) prepared to protect your share of a former spouse’s retirement. The QDRO will advise the administrator of the plan how to divide the retirement account so that the non-participant spouse can be paid directly from the plan.
There are certain types of equitable distribution issues that are subject to enforcement through civil contempt. If the order involves taking certain actions rather than the payment of money, the order can be enforced through contempt. For example, an order that a spouse to sign a sales agreement for the family residence or that a spouse be made the beneficiary of a life insurance policy can be enforced through the contempt process. However, the distinction between when an equitable distribution issue involves the performance of an act or payment of money is not always clear.
The recent case of Byrne v. Byrne, 4D13-1150, 2014 WL 308023 (Fla. 4th DCA Jan. 29, 2014) provides an example of how difficult it can be to determine that an equitable distribution issue is subject to enforcement through a contempt action. The wife in the case was awarded the family home and responsibility for paying the mortgage. When the wife failed to pay the mortgage, the husband filed for contempt. The trial court determined that the wife was not subject to contempt because her inaction involved paying money to the bank. However, the trial court did require the wife to catch up on the mortgage. When the wife failed to catch up on the mortgage, the bank initiated foreclosure on the property. The husband again filed for contempt, and the trial court ruled in his favor. On appeal, the 4th DCA reversed the trial court finding that the second order involved payment of money other than support, so it was not enforceable through contempt.
These types of complex issues involving equitable distribution of assets and debts in a divorce are common. If you do not have a reputable family law attorney advising you, you may find that the equitable distribution award in your divorce settlement is illusory. If you have questions about equitable distribution under Florida law, you should speak to an experienced Florida family