I have previously written a number of blogs about the tricky subject of spousal maintenance. In the main I have addressed what the court looks at when considering when to make a spousal maintenance order. However, what happens when you are successful in obtaining a court order for spousal maintenance but the person ordered to pay it doesn’t?
First, if you are the person who has been ordered to pay spousal maintenance it is vital that you don’t simply stop paying. Doing so could cause you all sorts of problems. It is therefore vital that you seek legal advice if you are struggling to pay the order rather than unilaterally ceasing payments.
Second, if you are the recipient of spousal maintenance and the payer has stopped paying it is important to act swiftly. Enforcing arrears that are over 12 months old becomes much harder to achieve. You need the permission of the court to apply for arrears over a year old and the court has more discretion to eliminate arrears of that age.
If you are owed arrears of spousal maintenance you can either: –
- make an application for a specific enforcement measure or;
- make an application for an enforcement measure that the court considers appropriate.
Available specific enforcement measures
There are a number of specific enforcement measures available:-
- an attachment of earnings order;
- a warrant of control;
- a third-party debt order;
- a charging order;
- a judgment summons.
We’ll now look at each of these enforcement measures in more detail.
An attachment of earnings order
When this order is made the debtor’s employer takes money directly from the debtor’s earnings which is then sent to the court who will then send it to you. When this application is made the court will usually expect you and the debtor to attend a hearing. The judge will decide whether to make the order and also decide how much the debtor should pay each month.
This should only be applied for if the debtor is in regular employment (not self-employment).
A warrant of control
This allows a bailiff to visit the debtor’s home or business. The bailiff will attempt to collect the money owed to you or take goods from the debtor which can then be sold at auction to raise the money.
A warrant of control will only assist if the debtor has enough goods at the address you give which could be sold to raise the money or the debtor has all the money you are claiming.
A third-party debt order
A third-party debt order freezes money in the debtor’s bank account. The court can then make an order that a payment is made to you directly from the debtor’s account.
The money held by the third party must be solely for the debtor. You cannot, for example, apply for a third-party debt order against a joint bank account.
A charging order
This prevents the debtor from selling their home until they have paid the money owed to you by placing a ‘charge’ against the debtor’s property. If the debtor owns stocks or shares the court can also put a charge on these in the same way.
A judgment summons
With a judgment summons the debtor could be sent to prison if they do not pay the amount that is owed to you. However, the judge will only send the debtor to prison if you can prove that the debtor has the funds available to pay you but refuses to do so. This can be difficult to prove.
Applying for the court to decide on the method of enforcement
This is the most common approach when dealing with enforcement of spousal maintenance mainly because the above specific measures require at least some understanding (and proof) of the debtor’s financial situation. The application requires the debtor to attend court to answer questions and produce documents. The judge will then decide how the order will be enforced.
If you do have any details about the debtor’s income and/or assets they should be provided to the court (with your application) and they will be taken into account, enabling the court to enforce the order more effectively. The court can order any of the above specific enforcement measures with the exception of a judgment summons under this process.
As you can see enforcing a spousal maintenance order can be a minefield. It is therefore important that you seek legal advice as to the appropriate course of action.
The above deals only with maintenance orders that have been made in England and Wales and/or where the debtor lives within the UK. In my next blog in this series I will deal with enforcement if the order was made outside of England and Wales and/or the debtor lives outside the UK.
If you would like to talk to an expert on spousal maintenance payments please do not hesitate to get in touch.
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