The first step would be to issue a default notice letter, highlighting the time lapsed since the last payment was due. The letter should request information regarding the reason for missed payment and ask that the payment be made – as well as requiring a response within ten days of the of the date of the letter or email. Perhaps the other side has some valid reason to explain the missed payments, or the parties can otherwise negotiate a payment schedule to get back on track. In these cases, a stipulation may need to be drawn up by an attorney and court may be avoided.
If no adequate response is received, then there is the option to remedy the situation in court.
What Options Are Available To Enforce A Spousal Support Order In New York?
After filing a default notice letter, if no appropriate response has been received, a petition should be filed in Supreme Court, or Family Court, requesting that the former spouse be held in violation of the court order. If the court finds the payor of alimony willfully violated the order and has no reasonable excuse to have missed payment, then counsel fee reimbursement is mandatory. Some may be reluctant to go back to court because it involves hiring an attorney – but in this case, it is important to note, the party not following the support order will generally be compelled to pay the incurred legal fees.
What Do I Need To Prove That The Alimony Order Is Not Being Followed By My Former Spouse?
Typically, all that is required is an affidavit stating the terms of the order, declaring the payments that have been received and the payments that have not been received. Bank account statements may be used as supporting evidence if direct payments should be received, however this level of support is not always necessary as proof with an initial application. Once an allegation that an order has not been followed, the burden shifts to the other side to prove either they have made the payments or they have a valid defense as to why they are not obligated (or able) to make the payments.
Can I Always Take My Ex-spouse To Court If They Violate A Spousal Support Order In New York?
No – court is not always the answer. Again, it is recommended to first send off a default notice letter bringing formal attention to the other side that you are alleging they are violating the order and give them a period of time (usually within ten days) to make payment. Some agreements do provide for as long as 20-30 days, so it is important to consult one’s divorce settlement agreement to see what period is specified. A default notice is not required – unless your agreement says otherwise – but it is advisable to do so, unless there is reason to believe the other side is intentionally ignoring the order. If the other party has a reasonable defense, such as being unaware that an employer was not sending payment, it is likely the issue can be rectified without a formal court hearing.
I’m Being Held In Contempt For Failing To Comply With My Alimony Or Spousal Support Order, What Does This Mean?
Contempt of court means the other side is alleging one intentionally violated the court’s order. If you are found to have willfully violated the order for alimony or spousal support, the top penalty for this violation (although rarely imposed) is jail time. If there is no track record of one violating the court order, then the court can impose a money judgment. They can authorize the other side to garnish wages, seize bank account assets or retirement/investment assets. In some cases, the court can authorize the person to seize property to satisfy any arrears. If served with a contempt application, one should consult with an attorney to discuss options for a valid defense to that application.
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