Divorce is an emotional process but one that has financial implications for most people as well. Typically, one spouse ends up in a better financial position while the other spouse struggles after the divorce. Alimony and child support payments are intended to help balance the financial inequity that happens post-divorce. When a former spouse fails to make alimony or child support payments it can be frustrating for the spouse who is entitled to that financial support. Learn what to do if you need to collect past-due alimony support payments.
What is the difference between alimony and child support payment?
When the parents of a minor child decide to end their marriage, or no longer live together, the law imposes an obligation on both parents to continue financially supporting the child until the child reaches the age of majority. Typically, that means that one parent is ordered to pay child support to the other parent.
Alimony, which is also referred to as spousal support or spousal maintenance, is a legal obligation imposed on one spouse to continue financially supporting the other spouse after the marriage ends. Alimony should not be confused with the division of debts and assets that is part of every divorce. Alimony is a separate issue and is not awarded in all divorces. There are several different types of alimony that might be ordered, including:
Rehabilitative alimony: This type of alimony is intended to help a spouse complete education or training that will help him or her re-enter the workforce following a divorce.
Lump sum alimony: This is a one-time, lump-sum payment that is usually used to help correct an imbalance in the division of assets. For example, if one spouse gets the marital residence in the divorce, that spouse may be ordered to pay alimony to the other spouse in an amount equal to half the equity in the property.
Periodic alimony. This is commonly referred to as “long-term alimony” because it takes the form of monthly payments that are to be paid to a spouse indefinitely unless that spouse remarries, or the court terminates the order.
When are alimony or child support payments considered past due?
In most states, a child support payment is considered past due when it is 15 days late. On the other hand, alimony payments are typically not considered past due unless a payment is 30 days past the due date. While state law governs many aspects of child support payments (because child support is a right of the child), your Divorce Settlement Agreement may govern alimony payments, including when payments are due and how much of a grace period the payor has before a payment is considered past due. With that in mind, it is always a good idea to read through your divorce settlement or final decree for information indicating when an alimony payment is considered past due.
How do I collect overdue alimony?
It can be very frustrating when a former spouse was ordered to make alimony payments to you and a payment is past due. At the same time, the idea of going back to court and re-litigating the issue is probably not appealing to you. Fortunately, you may be able to avoid the judicial system by sending your former spouse a Demand for Alimony Payment letter. This lets your former spouse know three important things:
- That you are aware the payment is past due.
- That you would prefer to resolve the issue amicably.
- That you are prepared to proceed with legal action if the alimony payment remains unpaid.
Be sure to send the letter in a manner that provides proof of delivery, such as certified mail. Ideally, the alimony payment will be paid shortly after your former spouse receives the letter. If the alimony remains unpaid, you should consult with an attorney about your legal options, including filing a Motion for Contempt.
How do I collect overdue child support?
Child support payments are intended to help with the expenses associated with the care and maintenance of minor children. When a parent gets behind on child support payments, the children suffer. As the parent entitled to child support, you may not be enthusiastic about returning to court over past due payments. If so, try sending a Demand for Child Support Payment to your former spouse.
Because child support payments are often paid directly to the court through an income withholding order, it may be that a systemic issue caused a delay in processing your payment. Sending a demand letter before initiating legal action allows your former spouse the opportunity to correct such a problem or to communicate his or her intent to bring the payments current.
If your former spouse fails to respond or fails to pay the past due child support in a timely manner, it may be time to consider legal action to enforce the child support order.
What can I do if my former spouse refuses to pay after a court order?
If alimony was agreed upon as part of a Divorce Settlement Agreement or awarded by the court at a trial, that agreement or award becomes an official order of the court. Failing to make an alimony payment is a violation of that court order.
If you get no response to a Demand for Alimony Payment letter, the next step is usually to file a Motion for Contempt with the court having jurisdiction over the original divorce. The court typically sets a hearing to allow both sides to address the past-due payment. If the court finds that your former spouse intentionally failed to make the alimony payment in violation of a court order, the court has several options, including:
Court order: The court can enter a new order for payment and add a monetary fine to the original amount. Continued violations of a court order can lead to additional fines or even jail time.
Writ of Execution: This is a special kind of court order that allows the seizure of a debtor’s assets or property. For example, a Writ of Execution may result in your former spouse’s bank account being “frozen” and the funds held in the account being seized to pay the past-due alimony. A lien could also be placed on other assets owned by your former spouse, including vehicles and real property, to satisfy the alimony debt. If the alimony payment remains unpaid, the court may be able to force the sale of an asset with the proceeds being used to pay the court-ordered alimony.
Wage garnishment: Also known as “income withholding,” the court directs an employer to withhold a percentage of your former spouse’s paycheck each pay period and send the funds directly to you or the court for disbursement to you. The order remains in place until the alimony payments are paid in full or until the court releases the order.