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My ex repeatedly doesn’t pay spousal support/maintenance. What can I do?

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Spousal maintenance is a tricky subject. In the main, ex-spouses resent paying it and receiving parties resent having to rely on the payments to make ends meet. So it can be both worrying and frustrating when the only thing reliable about an ex is that they repeatedly fail to make spousal support payments. In this article we answer the question: what happens when you have an order for spousal support/maintenance, but the person ordered to pay doesn’t?

What are the enforcement options if you are owed spousal support/maintenance?

It is an unfortunate reality that the spouse who usually needs the payment to meet their necessary expenses, is the party that is required to pay the costs of, and spend time trying to recover spousal support payments. This can be particularly stressful for the receiving party who is entitled to regular payments without incurring the additional expense of legal costs to chase them.

The first port of call when spousal maintenance payments are regularly being missed is to engage in mediation to establish why the payments are not being made. If mediation is not appropriate or has been unsuccessful, an application can be made to the court to enforce the original maintenance order.

If you are the receiving party and your ex has stopped paying, it is important to act quickly. Enforcing arrears that are more than 12 months old is much harder to achieve and you will need the court’s permission to apply if you want to recoup arrears over a year old. This is because the court has more discretion to eliminate arrears of that age.

If payment is not forthcoming and you are owed arrears of spousal support/maintenance, you can either:

  • Apply for a specific enforcement measure; or
  • Apply for an enforcement measure that the court considers appropriate

Enforcement measures include:

  • An attachment of earnings order – if this order is made, the debtor’s employer takes money directly from their earnings which is then sent to the court who, in turn, sends it onto the recipient. This type of order usually requires the parties to attend a hearing where the judge will decide whether to make the order and also how much the debtor should pay. This type of order should only be applied for when the debtor is employed. If they are self-employed, an attachment of earnings order will not be appropriate.
  • A warrant of control – this allows a court bailiff to visit the debtor’s home or business, who will attempt to collect the money owed or take goods from the debtor which can then be sold at auction to raise the funds. Such an order will only help the recipient if the debtor has sufficient goods at the address given on the warrant which could be sold, or the debtor has all the money being claimed and pays the bailiff.
  • A third-party debt order – this type of order freezes money in the debtor’s bank account. The court can then make an order that a payment is made to the recipient directly from the debtor’s account. Money held by a third-party must be in the debtor’s sole name. You cannot apply for such an order against a joint bank account.
  • A charging order – this prevents the debtor from selling their property until they have satisfied the debt owed to the recipient by placing a “charge” against the debtor’s home. If the debtor owns stocks and/or shares, the court also has the power to put a charge on these assets in the same way.
  • A judgment summons – it is possible with this order that a debtor could be sent to prison if they do not pay the sum owed. That said, the debtor will only be sent to prison if the recipient can prove the debtor has the funds available to pay but refuses to do so. This can be difficult to prove in practice, particularly if you have been divorced many years. The application for a judgment summons follows a strict procedure and you really need to be sure the debtor can afford to pay before applying. That said, in 99 out of 100 cases, these applications work and are never repeated. There will always be those that are prepared to go to prison rather than pay, but this is extremely rare.

In some circumstances, it may be possible to consider exchanging an entitlement to income for a lump sum by way of capitalisation of the maintenance order. In doing this, the court would first assess the payment which should be made at the time of the application and the duration of the maintenance order. This will enable the court to calculate an appropriate lump sum, if the debtor can afford it, of course. It is important to know that this approach can affect the lump sum payable because if the amount of support has reduced, this would in turn reduce the lump sum to buy it off.

How do you apply for the court to decide on the method of enforcement?

When someone applies to the court to enforce spousal support/maintenance, the most common approach is to allow the court to decide on the method of enforcement. The specific measures set out above require at least some understanding, and evidence, of the debtor’s financial circumstances. The application demands that the debtor attend court to answer questions and produce documents. This will enable the judge to decide how the spousal maintenance order should be enforced.

If the applicant has information about the debtor’s income and/or assets, they should be provided alongside the application. These will then be taken into account which will enable the court to enforce the order more effectively. The court can order any of the above enforcement measures under this process apart from the judgment summons.

If the debtor lives abroad, there may be reciprocal arrangements in foreign jurisdictions for enforcing the payment of spousal maintenance across most countries. However, this can be slow.

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