This article explains what to do if the other party is not following a court order in your Washington divorce or family law matter. There are many options depending on the order. Click here if he or she violated your temporary or final parenting plan. Instead click here if the opposing party violated your temporary or final child support order or a spousal maintenance obligation. Click here for failure to comply with a discovery-related order to disclose information. And click here if the other party violated an order to find work.
For all other situations, keep reading.
Table of Contents
I. Motion for Contempt And, In the Alternative, Clarification
II. Motion for CR 70 Relief
III. Collecting Money
I. Motion for Contempt And, In the Alternative, Clarification.
The most common recourse is a motion for contempt. Upon such a motion, the court can evaluate whether the other party clearly violated the order in question. If the court finds a clear violation, it signs a contempt order correcting the harm and coercing future compliance. For example, a party who refuses to sign a court-ordered quit claim deed might have to reimburse attorney fees spent on the motion and pay $100 per day until he or she signs the quit claim deed.
The primary limitation upon contempt is the constitution prohibition against debtor’s prison. Normally a party cannot be imprisoned for failure to pay money, and jail is a potential coercive remedy in a contempt action. For that reason, you generally cannot bring a contempt motion for failure to pay money.
The exception is if the nonpayment relates to child support or spousal support/maintenance. You CAN file a motion for contempt if the other party fails to pay family support. In fact, courts have a history of stretching to find a relationship between the amount owed and support, broadening the scope of contempt actions. More recent cases have somewhat reversed this trend by finding the failure to pay money does not relate to support. This is a gray area.
As stated above, a court can only find contempt if the other party clearly violated the order. Often the other side’s action or the order involves some degree of ambiguity. Jurists have the ability to clarify an order in case the violation or order were not clear enough. That, in turn, hopefully dissuades future violations. If not and the bad behavior continues, the clarified order is usually sufficient to justify contempt sanctions the next time. For this reason, a motion for contempt almost always includes an accompanying motion for “clarification in the alternative”. Click here for a full how-to explanation of motions for contempt and, in the alternative, clarification.
II. Motion for CR 70 Relief.
CR 70 allows the court to appoint someone to do what the opposing party refuses. For example, the court can appoint someone to sign a deed as if he or she were the opposing party. It also allows the court to charge all the costs and fees to the bad actor. This is an uncommon remedy, because a motion for contempt typically works well enough. But sometimes contempt does not accomplish the ultimate goal because of the opposing party’s stubbornness in the face of coercive measures.
There are no state forms available to assist with a motion for CR 70 relief. Our firm does, however, have an article on how to file generic motions. Make sure to read CR 70 before filing a motion of this type.
III. Collecting Money.
As mentioned, failure to pay money is not redressable through contempt, the most common remedy for violating an order. This section explains what you can do instead. It assumes the amount is unsecured, meaning you do not have a deed of trust (mortgage) or similar document allowing you to summarily sell the opposing party’s property to collect payment.
1. Reduce to Judgment. The first step is to reduce the amount owed to judgment. A judgment is different from a standard order. It totals the amounts owing as of that date and contains a judgment summary. The judgment summary appears at the top of the order, is labeled “judgment summary”, and takes the form of a table with information such as the judgment amount, prejudgment interest, the total amount owing, the post-judgment interest rate, the creditor, and the debtor. Click here to download a Word template for a judgment. If your order states the other side owes you money but does not include a judgment summary, you probably still need to reduce the order to a judgment before taking further collection action. You can file a motion for one. Usually you would file the motion in the county of your family law case, assuming either party still lives there.
The court can only issue a judgment for amounts immediately owing. For this reason, you might not be able to obtain a judgment yet; you might have to await until the financial obligation comes due. For example, an order to “pay $10,000 in attorney fees within the next 30 days” cannot be reduced to judgment until the 30 days pass.
Notably, you might prefer a standard order over a judgment. This might be for simplicity’s sake. It is easier to write a standard order rather than include a judgment summary. More importantly, in most cases the other party is more likely to voluntarily pay if you give him or her a future deadline rather than make the amounts instantly past-due as a judgment. If the amounts are instantly past-due, there is less of a mental barrier to allowing them to remain that way. Ask yourself, “is the the party more likely to pay if I give them a future, achievable payment deadline?” If so, you would probably do better to request a standard order with a future deadline and reduce the amount to judgment if/when the opposing party fails to pay on time.
Once you have a judgment, it sometimes makes financial sense to delay collection action for a year or two. Most unpaid amounts in family law accrue post-judgment interest at 12% per year. That compares favorably with investments. The amount owed increases sizably with the passage of a few years, and you might have an easier time collecting once the other side’s earnings or assets have had time to grow.
Your general timeframe for collecting on these unpaid amounts is 10 years from the date of the judgment, the statute of limitations for judgments. You can renew for an additional 10 years by taking certain steps immediately prior (90 days prior) to the judgment’s expiration.
2. Taking the Money.
Up to this point you simply established your right to money. The next step is to take it. Taking the money essentially exceeds the scope of family law and instead becomes debt collection. For that reason, this family law article only briefly explains your primary options. Once you identify the action you intend to take, refer to a debt collection guide, such as Chapter 7 of the Washington Lawyers’ Practice Manual (WLPM), for step-by-step instruction. You can probably find the WLPM in your county’s law library.
The debt collection guide should be for the state or country of the debt collection action. You would typically start your debt collection proceedings in the state or country where the nonpaying party lives.
A. Record the Judgment. Much like with a deed or mortgage, you can record a judgment with a county’s recording department. Doing so creates a judgment lien against the real estate the debtor owns in that county. Sometimes merely having the arrearages reduced to judgment is enough to create a lien against real property in the court’s jurisdiction, but taking the additional step of recording the judgment is better practice. For example, Washington law indicates you must record the judgment to ensure the lien attaches to real estate qualifying as the obligor’s primary residence.
B. Garnishment. Garnishment means to take money directly from the debtor’s paycheck or bank account.
C. Execution. Execution is the legal term for selling assets to pay a debt. The process is rare and only worthwhile if the opposing party owes you substantial amounts and has substantial equity in property.
That’s it! We hope this was helpful. Our firm believes in making quality legal information available for free on the internet. For more, click the resources tab in the upper right corner of any page on this website.
Or call us at 866-631-0028 to speak with a Genesis divorce lawyer in Bellevue or Everett, Washington. From all of us at Genesis, we wish you the best with your family law matter!
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