This article was written by featured Family Law Attorney Michael H. Gora.
Q: Yesterday I went to court and was sandbagged by the judge. My Ex wife had filed a motion for contempt against me, because I was behind in alimony and child support by five months under our marital settlement agreement. When the contempt motion was filed it was only a month, but by the time it got to court, it was five months.
The judge first held me in contempt for non-payment, even though I had lost my job about six months ago, because my company went out of business. My unemployment of $1,100 a month was hardly enough to keep a roof over the head of me and my new wife and her daughter.
The judge said that I should have tried to take out an equity line on the house, or borrowed or taken money from my 401K, or borrowed from my 401k, or rolled it over into an IRA and then withdrawn from it. I already gave my Ex-wife half the 401K in the divorce and lost half of that in the stock market.
The judge’s order gave me a month to raise the entire amount of money from the equity in the house or the retirement accounts; about $12,000.00. She ruled that I could use the equity in the house for no other purpose.
She ruled further that even if I paid up the arrearage with the retirement money, I was prevented from selling the house or using the house equity and retirement accounts for purpose in the future, other than as security for the support money.
My lawyer is doing some legal research to see if the judge could do all that to me. Now, even if I want to try to sell the home, and move for a job offer, currently a possibility, I cannot. What do you think?
A: The final contempt order may be appealed, as a matter of right. However, before you invest money for attorney’s fees and costs you should carefully analyze your chances.
In order to determine whether or not you were in contempt it was necessary for the judge to find that you had the ability to pay the support when it was due, and the ability to pay, entirely or partially, the support at this time.
The judge could look toward your assets as well as your income in reaching her conclusions, even though your former wife had received her half of those very assets in the divorce case. However, considering your loss of your job was not your fault, and all of the surrounding circumstances an appellate court might reverse the judge for abusing her discretion.
The appellate court, on the other hand, seems to have a clear-cut path to reverse the judge’s order to perpetually use your house equity and retirement equity as collateral for the support payments.
Such a remedy could only be engrafted onto your marital settlement agreement if your former wife had filed a “Petition to Modify” the original Marital Settlement Agreement, not in a case for contempt. Since there was no such Petition filed in your case, the judge had no right to modify the agreement in a contempt case.
Michael H. Gora, Boca Raton divorce lawyer, has been certified by the Board of Specialization of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. Questions may be submitted to Mr. Gora at email@example.com.