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Collecting Alimony and Arrears by Seizing Pension and Retirement Accounts
I am in my sixties and I have been collecting alimony on a regular basis from my ex-husband…
However, my ex-husband has recently retired and he moved to Florida. He has recently stopped paying me any alimony. What are my legal options?
If your ex-husband is retired and if he is receiving a pension then you can seek to have his pension garnished. You can use a Qualified Domestic Relations Order (QDRO) that orders the alimony to be directly garnished from your ex-husband's retirement benefits.
How does this legal process work?
Divorced people are often familiar with the use of special court orders called Qualified Domestic Relations Orders (QDRO's). These court orders are used to equitably distribute pensions that were earned during marriage. The term QDRO is the name for orders that are used for ERISA-approved private pension plans. An important but overlooked fact is that QDRO's may be used to seize an additional portion of the retirement benefit remaining with the retired former-spouse to pay for alimony each month. Moreover, you can also use QDRO's to collect past due alimony arrears.
Once a QDRO is approved then a certified copy of the alimony or QDRO is sent to the administrator of the pension plan. Once the plan administrator receives the QDRO, then your alimony arrears can be fully paid. Moreover, your monthly alimony check can also be paid directly from your ex-husband's pension. This process is very similar to a wage garnishment.
Is this legal process difficult?
Yes, it can be but it can work like a charm. QDRO's can be very complicated and they can take a stack of paperwork to effectuate. Moreover, you usually have to retain an actuarial company to assist you to complete this process. However, be forewarned that your ex-husband will probably file a motion to reduce/terminate his alimony obligations if you try to seize his retirement accounts or pension. If your husband has recently retired then this event may constitute a change in circumstances that would permit allow the court to review and perhaps even change or eliminate the amount of alimony. It is important to emphasize that each case is different and stands on its own merits. Obtaining your back alimony by trying to seize your ex-husband's pension and retirement monies will not be an easy task. However, if your husband has been a "wily coyote" and if he is simply not paying, then seizing or garnishing his retirement monies may be your last chance to get paid. However, please keep in mind that in all likelihood your ex-husband will file a motion to reduce/terminate his alimony once you file your legal papers. If your ex-husband has experienced a new change of circumstance(s) since the divorce, then he could request that his alimony be reduced or terminated. He can make this application before any QDRO is filed to seize his retirement monies.
What type of information do I need before I speak to a lawyer about trying to seize my ex-husband's pension or retirement accounts?
Before you contact any lawyer you should have a copy of your divorce judgment, your property settlement agreement, and any court orders that were filed in your case. If you are owed any alimony arrears then if possible, you should also obtain a certified copy from probation of the amount of the arrears. Finally, you should also have copies of any of your ex-husbands social security papers, his retirement account statements, or any pension info. If you have to file any type of enforcement motion to collect back alimony then your lawyer will need the above documents and information.
What type of defenses can my ex-husband raise if I try to seize his pension, social security of his retirement account(s)?
Your ex-husband will most likely file a motion to reduce/ terminate his alimony based on a change of circumstances. If your ex-husband has retired then he will file a motion to reduce /terminate his alimony based on this ground. Retirement is a major event that is frequently cited as change of circumstance(s) in New Jersey. Many judges will reduce/terminate alimony when an ex-husband reaches the age of 65. However, this rule is not set in stone. I have had one case wherein my client's motion to terminate alimony was denied and he was 86 years of age. In most applications to reduce/terminate alimony based on retirement the court will also order a discovery schedule and set the case down for a plenary hearing. Thereafter, the court will analyze the income of both parties, their lifestyle, and the available resources. Naturally, this legal process takes many months if not a few years to complete. Moreover, alimony related litigation is very stressful. No one likes to litigate especially when they are seniors. Litigating over alimony issues is essentially reliving your divorce case. However, money is money and you need it to live. In the majority of cases the stress over fighting for your hard earned alimony dollars is worth the effort.
Can social security or other federal benefits be garnished to collect back alimony?
Federal law says that many federal benefit payments like Social Security benefits, Supplemental Security Income benefits, Veteran's benefits, and Railroad Retirement benefits can be subject to garnishment. This means that these funds can be garnished to collect alimony and any arrears. More specifically, Section 459 of the Social Security Act (42 U.S.C. 659) allows Social Security benefits to be garnished to enforce child support and/or alimony obligations.
If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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