Legal Question in Family Law in Minnesota

Re: payment of a divorce settlement

The payment of a property division based on a divorce decree can be enforced through the cpourt's powers of contempt.

For a consultation call us or visit divorceprofessionals.com

Re: payment of a divorce settlement

The short answer is "no," although I would need more facts to properly analyze the issue.

The law states, generally, that divorce judgments are final. Once the Judgment and Decree has been approved by the court and judgment has been entered, the parties are obligated to abide by the terms of the decree, and those terms (other than child support and maintenance) cannot ordinarily be modified or avoided. Once judgment is entered, it is final.

If a party refuses to comply, then there are a variety of enforcement mechanisms available, depending on the matter at issue and the language of the decree. If, for example, one party is ordered to pay a property settlement, and the obligation is not secured by a lien, the only meaningful remedy is often to get a judgment against the recalcitrant party. That is often a fruitless endeavor, however, since the enforcement of money judgments is not always easy -- especially if the there are few assets to garnish.

Ideally, the obligation is secured by a lien against something, so that if the party obligated to make payment refuses to pay, there is a lien against his/her interest in a home or some other asset. Occasionally, property settlements are even secured by a conditional award of spousal maintenance, so that if the party refuses to pay, there is an award of maintenance that can be collected, although this requires very careful drafting in the decree. The advantage of this is that maintenance cannot be discharged in bankruptcy, and can be enforced by the court's contempt power, which is not available to enforce ordinary money judgments.

To summarize, the simple answer is that a party cannot lawfully just refuse to pay a court ordered obligation. The more difficult issue, however, is how that obligation is enforced, and much more needs to be known about the facts in order to competently comment on this issue. If you are not already represented by an attorney, you should contact one for assistance in this matter.

If you have additional questions or concerns, my contact information is below.

Thank you for your question.

Re: payment of a divorce settlement

As my colleague and I have both noted in our prior postings, contempt may be used to enforce certain obligations arising out of a divorce decree. Child support, maintenance, awards of attorney's fees, and an order with specific instructions to exchange property, for example, can be enforced by the court's contempt power. What this means is that the court can place the recalcitrant party in jail until he/she complies with the court order.

Ordinary obligations to pay money, however, other than child support, maintenance or attorney's fees, cannot be enforced by contempt. If, for example, one party is ordered to pay money as a property settlement, that obligation cannot generally be enforced by contempt. In other words, the recalcitrant party cannot be ordered to jail until the money is paid.

There are several reasons for this, but the most important is that the Bill of Rights in the Minnesota State Constitution prohibits imprisoning citizens for the non-payment of a debt. We no longer have "debtor's prisons." The state constitution provides, in part:

"Sec. 12. IMPRISONMENT FOR DEBT; PROPERTY EXEMPTION. No person shall be imprisoned for debt in this state...." There are also many court decisions and state laws that deal with this issue. (Minn Stat 550.02, the "Burghardt" and "Ecklund" cases, for example.)

Where the order merely provides for the payment of money,a property settlement for example, the only remedy generally available is to get a judgment against the other party.

This is why it is important to include some way of securing the payment of a property settlement as part of your divorce settlement, whether with a lien against some piece of property, or with some other contingency (if the money isn't paid, then something else happens -- property isn't exchanged, for example.)

What types of remedies are available to you depends on a wide variety of facts that should be examined by your lawyer -- such as how the obligation is characterized in the decree, whether there is some provision to secure the obligation.

Good luck.