Marital debt is unlike other types of debt due. For one thing, most debt is collected in the Civil Division of the Courts, particularly the law division (if it’s a large debt) or in the Special Civil Part or Small Claims (if less than $15,000). Another interesting facet of collecting monies owed to someone in family court matters, is that child support may be considered an automatic lien. Although docketing monies due may still apply in divorce law, there is an easier path to navigate to collect. This is particularly true and in family court cases if a parent owes money and is held in contempt he or she may be jailed until they pay a certain portion of the money due and owing.
Some of the methods of collection available in civil court cases, which may also be pursued as part of enforcement actions in family court matters include wage garnishment, bank levy’s, and chattel (property) levies. If support is being collected by Probation/Family Support Services then action(s) may be taken to collect on your behalf even absent court intervention. It is your right to ask that payments be made through Probation and this is generally chosen over “direct pay” in New Jersey divorces.
Another type of relief that may be pursued is what’s known colloquially as a “Constructive Trust,” or seeking that certain funds (such as retirement funds) be “sequestered.” This may come in handy if a party owes monies for college or private education, for instance and is not paying. The Courts may order that certain funds be liquidated to pay monies due.
New Jersey statute N.J.S.A. 2A:34-23 provides, in relevant part, that:
If an obligor shall abandon an oblige or separate from the oblige and refuse or neglect to maintain and provide for the oblige, the court may order suitable support and maintenance to be paid and provided by the obligor for the oblige and their children. If the obligor fails to comply with the order of the court, entered in New Jersey or another jurisdiction, the court may impose a lien against the real and personal property of the obligor who lives in or owns property in New Jersey to secure payment of the overdue support and for such time as the nature of the case and circumstances of the parties render suitable and proper. (Emphasis Added). Accordingly, certain real property may be subject to a lien if an obligor (the person who owes money) does not remit payment in a timely fashion to the obligee (the person owed the money).
If you (or your minor children) are owed money, it may be important to act fast to protect your rights in Court. That is because Courts may impose the equitable doctrine of “laches” against you if you do not pursue your interests. “Laches” essentially means that you “slept on your rights.” Under the New Jersey case of Rolnick v. Rolnick, 262 N.J. Super. 343 (App. Div. 1993) and its progeny, a party urging application of “laches” must demonstrate that the other party: 1) delayed in asserting a claim now stale without explanation or excuse; 2) that the delay was unreasonable given the circumstances; and 3) that the delay was prejudicial to the party urging the defense. Laches are an affirmative equitable defense that may bar rights afforded to a party under a Marital/Property Settlement Agreement, a judgment, or an Order.
Collecting monies due to you in a New Jersey divorce action can be tedious and feel like throwing “good money after bad.” Indeed, a large percentage of child support and alimony ordered or agreed to is never paid. I have, however, been able to utilize creative methods throughout my career to assist clients in obtaining monies due them (or their children). Such enforcement actions should be viewed with an eye on a careful cost-benefit analysis and are fact-sensitive.
If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options. You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.