Your Rights — Going Fast! Part 1

Your Rights — Going Fast! Part 1

written by: Rachel Alexander,
by: Rachel Alexander,
Alexander yourrights-goingfast part 1 dplic 177213730 m-2015 Alexander yourrights-goingfast part 1 dplic 177213730 m-2015

{5 minutes to read} Not receiving the relief promised in your Judgment of Divorce (JOD)?

Spouse still hasn't paid the correct monthly amount of child support or share of the children's out of pocket medical?

If your ex-spouse is not complying with the court order, you must act swiftly to file a Motion to Enforce asking the court to mandate the other party's compliance. Your delay or inaction could be interpreted by the court as acceptance of your ex's "counter-offer" (via behavior).

Can you rely on your Judgment of Divorce or other court-ordered relief? Read on for a cautionary, hair-raising tale.

The Story

In a recent post-divorce matter, the parties received a JOD that, among other things, required the father to make specific, weekly child support payments and equally contribute to un-reimbursed medical expenses for the child. Subsequent to receiving the Order, the parties had a sidewalk conversation in which child support was discussed and, according to the father, reduced. The mother denies that any agreement was reached in this brief conversation. Thereafter, the parties, through their attorneys, negotiated but failed to reach any agreement modifying the child support. Nevertheless, the father continued to pay the lesser amount and the mother continued to accept it. The mother did not return to court to file a motion to enforce the JOD.

Should the mother have gone immediately to court to enforce the JOD's higher amount of child support? Should the father have sought the permission of the court to reduce the child support amount? With whom should the burden lie?

A recent case dealt with these issues. A Union County, New Jersey court found that the burden, in fact, lay with the party relying on the Order to ensure enforcement. That is, the party NOT seeking to change the court Order is responsible for asking the court to intervene. Does this create a [dangerous] precedent of non-reliance and non-adherence to court Orders? A denigration of the judicial authority from Orders to mere gentle recommendations?

In the case at bar, the court applied the Doctrine of Laches ("sleeping on one's rights" without good reason, to the detriment of other side) holding that the mother's 4-5 year delay in seeking payment for the balance of underpaid child support and reimbursement of the child's out-of-pocket medical expenses caused her to forfeit her rights to any recovery.

So why didn't the mother seek court intervention five years earlier, as soon as the father failed to comply with the agreement?

She had several reasons, all pertaining to a thoughtful cost/benefit analysis, considering the time and expense of pursuing judicial intervention. The mother:

was already financially and emotionally depleted by prior extensive, acrimonious, frustrating litigation;

was the primary breadwinner and couldn't compromise her career with continued absences and the additional stresses of continual conflict;

was primary custodial parent, and reckoned that continuous conflict with the child's other parent during her son's adolescence was neither a wise nor a loving choice (getting on with their lives was);

appreciated that she might have to spend thousands to recoup hundreds, with no guarantee of a favorable outcome;

was informed by history that the other party would stonewall her at every turn;

reasoned that a financial exchange was imminent in approximately four years, whereby the Order required her to pay the father his share of the marital home. She expected to negotiate credits for underpayment of child support and their child's medical, extraordinary, and college-related expenses at that time. Seems perfectly reasonable.

So rather than allowing for a reasonable accounting to take place once funds were clearly at the parties' disposal to negotiate, the court applied, sua sponte (i.e. from the bench, without the argument introduced by counsel), the Doctrine of Laches. Although it is entirely unclear how the father had been prejudiced in any discernible way by NOT paying what he was court ordered to pay for several years, the Judge nonetheless upheld [himself] on our Motion for Reconsideration.

What are the ramifications going forward? Our next article explores just that.

Click here to read more articles from my blog...

Rachel AlexanderRachel Alexander

Alexander Mediation Group

119 West Valley Brook Rd

Califon, NJ 07830

(908) 832-2305