The recent trend of issuing heavier legal sanctions for non-compliance with alimony awards is good news for those who are dependent on financial support from a former spouse. The key, however, is to react sooner rather than later, especially when the other party is attempting to manipulate the system. A recent case exemplifying the costs of failing to enforce an alimony award is Strunk v. Figueroa, in which the husband was awarded a lump sum alimony award of $23,369. The amount was to be withdrawn from the wife's retirement account, but months went by without the plaintiff receiving the money.
It turns out that she had withdrawn the money, but it was done before the final divorce decree. Furthermore, she filed for bankruptcy four months after the divorce and included the husband as a creditor with a debt of $23,369 incurred as a result of the divorce. This was clearly an act of bad faith -- a deliberate attempt to shortchange the plaintiff out of his alimony award. The problem is, the plaintiff failed to contest the bankruptcy motion, which would have been easy enough to do, considering that the alleged debt was the exact amount of the alimony award.
In a truly confounding series of decisions, the husband chose not to contest the dischargeability of this debt, which resulted in the debt being discharged by the bankruptcy court. The husband claimed that his lawyer told him not to contest the debt, which is a rather dubious claim since federal bankruptcy laws clearly allow creditors to contest debts under their name within 60 days. Regardless of what really happened between him and his lawyer, the plaintiff then went onto file an action against his ex-wife -- a full year after the alleged debt was dismissed.
His complaint was dismissed by the Law Division, but he persisted by filing a second complaint with the Family Division. This proved fruitless as well, since the Family Division could not reverse a fully discharged debt. The plaintiff asserted that the debt could not be discharged to begin with since it was “the property of another”, but this was a flawed argument, according to the Appellate Division. As they saw it, he chose to “utterly ignore the bankruptcy proceeding”, then attempted to correct his error and/or negligence by going through the family courts. In short, taking action a year after the fact is too little, too late.
Had the defendant contested the bankruptcy petition right away, he would not only have had a very good chance of preserving the debt, but he may also have been able to obtain sanctions against his ex for attempted theft of his alimony award. The takeaway here is that acting as soon as possible is the key to resolving any divorce-related action. If your former spouse is failing to comply with your alimony award or any other terms of your divorce agreement, please speak with the family law attorneys of Villani & DeLuca, P.C.