Last week I helped teach a local CLE course. My topic involved how to recover monies owed to family law clients. Below are some of my notes I created in preparation for the CLE course.
I. Recovering Child Support and Alimony Owed to Clients (Overview of Relevant Law)
New Jersey Child Support Program Improvement Act
– All child support is an automatic judgment.
- Court Rule 5:6
– 5:6-1 provides that, with the exception of certain UIFSA proceedings, a summary action for support may be brought by either the party entitled thereto or an assistance agency i.e. the Probation Department.
- Court Rules 1:10-3, 5:3-7, 5:7-5, and 5:7-6
– A litigant may seek relief to enforce litigant’s rights/finding the Defendant in contempt of Court.
– The Court may, upon the finding of violation of alimony or child support, grant the following remedies: fixing arrearages and entering judgment plus interest, requiring payment of arrearages on a periodic basis, suspension of occupational or driver’s licenses, economic sanctions, community service, incarceration, warrant.
– Docketing arrears as a Civil Money Judgment with the Clerk of the Superior Court. (Trenton, $10.00).
– Using QDRO’s and pensions/retirement accounts to collect arrearages? Immunity by plan?
- Probation Department (types of relief available).
– Enforcement hearings with Hearing Officer.
– Wage garnishment – cannot be more than 60% of an individual’s income.
– Garnishing tax returns, lottery winnings, homestead rebates, etc.
– Probation works well when Defendant is a known, W-2 employee.
– Tri-annual review.
– Late fees/interest – Can be assessed on any support due for 30+ days.
– Release of information to credit reporting agencies – If $1,000.00+ is due in unpaid support.
– Levying bank accounts (Financial Institution Data Match). Can be assessed on any support due for 35+ days when arrears equal 3+ months of monthly obligation.
– Passport denial. 6+ months of support due. Other professional or recreational licenses can also be taken.
– AG’s Office – Federal criminal misdemeanor and felony charges for the willful nonpayment of child support (fleeing state).
– License Suspension – 6+ months.
II. Process of Recovery (outside probation).
I. Collecting For Your Clients
–Is enforcement/collection worth pursuing? For instance, is the obligor “judgment proof?” Is the amount owed worth the cost of counsel fees and court costs given that judges are sometimes reluctant to shift legal fees even when a party is found to have violated litigant’s rights.
–Have attempts been made to amicably resolve the issues before filing with the Court?
-What Divorce Attorneys normally do to collect money for our clients:
- Motion to Enforce Litigant’s Rights and requesting that the obligor be found in “civil contempt.”
- General Requests for Relief in Motion’s to Enforce Litigant’s rights:
- Payments of Counsel Fees.
- Interest on amount due.
- Seeking security for future payments. (life insurance, receiverships, etc).
- Payment through Probation.
- Dismissing pleadings (if divorce has not been finalized).
- Proper role of Sequestration and Lis Pendens.
- The role of the Probation Department.
–Moving beyond Motions to Enforce Litigant’s Rights.
- The power of judgments.
- Can you file in civil division?
- Child Support Awards are automatically judgments, by operation of law.
- Could the Federal Debt Collection Practices Apply to family law attorneys?
One of the greatest frustrations in the law is having an Order that is enforceable because an individual is “judgment proof,” or because it is too costly to pursue the proper avenues for recovery. Luckily, when Probation is available, clients are provided with a very effective and powerful tool in collecting their child support and/or alimony due.
Your New Jersey Divorce Lawyer:
If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options. You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.