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The Divorce Encyclopedia
Enforcing the Decree

Term Definition Enforcing the Decree - a variety of tools.
Application in Divorce When a spouse does not receive the money or property awarded him or her under equitable distribution, he or she may turn to the remedies available to judgment creditors, including equitable relief.

Other remedies, including garnishment, contempt, execution of real property, reallocation of debts and assets, are also available, although the application of each of avenues has caveats. These remedies demand consideration of the situation, and probably each requires the advice of legal counsel. For example, garnishment of wages may become problematic if the money sought represents wages or pension benefits because federal and state restrictions on garnishment may limit the collection of amounts owned as a property division. Courts are divided about the use of civil contempt to enforce obligations of an equitable distribution decree. The execution of real or personal property may even include property not in the original distribution. As long as it does not change total amount awarded each spouse, a reallocation of debts and assets may be considered, for example,

a debiting and crediting that reflects the "total amount of marital property allocated to each spouse..." For example, in one 1991 Minnesota case, the wife received the marital home, with a lien in favor of the husband, and the requirement that he pay their 1987 tax liability. When he failed to make that payment, the court permitted the wife to do it, and reduced the lien by a corresponding amount.

Many lawyers advise care in crafting settlements as a way to prevent problems with enforcement after the decision.

When negotiating a settlement, the need for many postjudgment proceedings can be avoided by taking preventative measures that revolve around a "financially realistic decree." For example, in a declining real estate market, providing for a monetary award out of the sale of real property may become very difficult when the property sits unsold for months. This situation, which is becoming more common because of difficulties in the housing market, may require establishing time limits, liens, the payment of interest, life insurance.

A reservation of maintenance, which is the right to support, may be appropriate for certain postjudgment events, such as a failure to comply with property distribution or the other spouse’s filing of bankruptcy.

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