Divorce Decisions for Both Spouses
In a divorce, it is much better to be owed support than any type of property distribution. The reason is simple – it is easier to collect support than collect property distribution. For support issues, the judge can ultimately put someone in jail for refusing to pay, this is never an option in a property distribution case. Support obligations are also usually covered by life insurance should the paying party pass away.
Support issues include, child support, alimony, and attorney fees. A court can order the payment of child support, alimony, or attorney fees if the court finds the payment is legally justified and a person has the ability to pay. If a person fails to pay the court, upon proper motion, can find the person in contempt of court. Once a person is held in contempt of court a court can, among other sanctions, put the person in jail until payment is made.
Property distribution in a Florida divorce is called equitable distribution. It involves dividing the property accumulated and the debts accumulated during a marriage. If a former spouse fails to pay a marital debt they were ordered to pay, a court in Brevard County cannot find the former spouse in contempt of court. Only normal debtor-creditor law applies to such a collection effort. Also, if your former spouse is ordered to pay you money from a marital account or other asset, and they do not pay, you have to get a civil judgment and then try to collect on that judgment.
The law is different in other counties. Brevard County is under the jurisdiction of the Fifth District Court of Appeal. The Fifth District Court of Appeal in the case of Lynch v. Lockyer, 180 So. 3d 1120 (Fla. 5th DCA 2015) held that contempt is not an available remedy for property distribution issues. However, the Second District Court of Appeal found in Roth v. Roth, 973 So. 2d 580 (Fla. 2nd DCA 2008) that contempt is an available remedy.
Try to never have a former spouse be ordered to pay a debt that is in your name. For example, a credit card is just in your name but your former spouse, in the Final Judgment of Dissolution of Marriage, is ordered to pay that debt. If your former spouse does not pay, the credit card company comes after you. The credit card company comes after you because they have a contract with you. The Final Judgment of Dissolution of Marriage cannot change the contract you have with the credit card company. The credit card company can sue you for payment or damage your credit rating. You can sue your former spouse for payment but collection can be difficult.
It can be difficult in Florida and especially the Fifth District to collect a judgment against a former spouse, even a former spouse that is financially secure. Florida law frequently favors debtors over creditors. For example, your former spouse may own a home worth millions. If the home is homestead property it is protected against creditors. You can lien the home and then you have to wait for your former spouse to die or sell the property. Perhaps the former spouse has a military retirement. The payments are protected against creditors. Once again, your ability to actually collect is limited.
It is much better to not put yourself in such a situation. For your divorce you should hire an aggressive, experienced family law attorney. At Mario, Gunde, Peters, Rhoden, and Kelley, we have the experience needed to know how to look ahead and avoid potential problems. We serve all of Brevard County, including Titusville, Cocoa, Merritt Island, Viera, Melbourne, Rockledge, and Palm Bay. Call us for a free consultation.
