After an order for alimony is entered by the court, it is enforceable by Florida courts. It does not matter whether the order was temporary or final. If an order was entered by the court with due notice given to the obligor, it must be followed pursuant to the details contained within the order. But what happens when your husband or wife stops paying alimony after a Florida divorce?
There are two ways to request a Florida court to enforce an order. You can ask that the court hold your spouse in criminal or civil contempt.
Criminal contempt is serious but complicated. All of the rules of criminal procedure must be followed: notice of charges, arraignment, even a jury trial. Criminal contempt is rare in Florida domestic relations courts.
Civil contempt is far more common. Civil contempt proceedings are merely asking that the obligor pay the alimony owed. An obligor who is found in civil contempt may be sent to jail but payment becomes a “get out of jail free card.” The obligor doesn’t even need to pay the full amount owed to avoid incarceration. The judge will set a “purge amount” which is to be paid to guarantee release. Upon release, the obligor will return to court to arrange for a plan to pay the total alimony arrearage owed.
The obligor is entitled to the defense of saying he or she has an inability to pay the ordered alimony. It will be the obligor’s duty, however, to prove that he or she has the inability to pay. This is no small feat, in my experience. The court went through a great deal of trouble to determine your ability to pay when the original alimony order was entered so the obligor is going to have to show that there has been a substantial change in circumstances.
Obviously, this means that every defendant in a motion for civil contempt for failure to pay alimony would and should file a motion to modify alimony based on their inability to pay. The defense to the contempt and the proof required to modify alimony are the same: inability to pay.
While courts like to threaten jail time, putting someone in jail (where they can’t work) is clearly not the best solution to catching up on an alimony arrearage. Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985). The courts also have the power to issue a judgment to seize capital assets from a bank account, put a lien on real estate or compel a release of funds from a retirement account. Dorsey v. Dorsey, 961 So. 2d 1108 (Fla. 2d DCA 2007)
If the alimony order is from another state it still can be enforced in Florida so long as one of the parties is a Florida resident. Simon v. Simon, 73 Fla. 919, 75. If the obligor spouse lives in Florida, this is obviously preferable if you believe you’ll have to incarcerate him or her, seize his or her assets or at least have a Florida sheriff execute a writ of bodily attachment (a civil arrest order).
Most importantly, a contempt finding will taint you or your spouse in the eyes of the court. The judge will always think, “If you couldn’t afford your alimony, why didn’t you come into court on a motion to modify instead of taking the law into your own hands and defying MY order.” Impressions matter. Conversely, it’s been my experience that judges are extremely considerate and respectful to parties that have filed a motion to modify prior to reducing their alimony payments.
As a side note, the best way to prove you cannot pay your current alimony and that you’re not simply defying the order is to pay some alimony if you can’t pay it all. This shows good faith and will help your credibility when you make the final argument to the court.
If your spouse is no longer paying their alimony or you are no longer able to pay your court ordered alimony contact my Naples, Florida family law office to talk to an experienced lawyer and learn what your options are.