Post -Decree Issues

Post-Decree Issues

Dear Jeff & Andrew:

I have been divorced for several years following a very long-term marriage. All of our assets were divided and my former husband faithfully paid the spousal support we agreed to. However, there is one open issue.

The judge ordered my husband to maintain a life insurance policy with a net, death benefit of $350,000 with me named as beneficiary. I recently asked him about the policy and he indicated that he saw no reason to maintain it given the fact that he met all of his other obligations. He claims that he let the policy lapse and has no intention of replacing it.

I had always planned on the eventual receipt of that money as his obligation was contained in a court order. What do I do now? If he dies without the policy, where does that leave me?

Whether or not your former husband has met all of his other obligations, the court order that requires him to indefinitely maintain a life insurance policy with you as the beneficiary is still a valid and enforceable court order. While you may have a valid claim against his estate if he dies without the policy in place, that is a process that you do not want to have to go through.

Now that he has told you that he is not following the court order, it would be prudent for you to file a contempt action based upon his failure to abide by the order. If you do, and if the court finds that he has allowed the policy to lapse, the court can order him to obtain another policy or to name you as the beneficiary of other life insurance policies he may have. The court has broad discretion to issue orders that fairly and reasonably require compliance with an existing order. It is certainly going to be easier for you to deal with this issue now than after his death.

Dear Jeff & Andrew:

When my wife and I were divorced three years ago, I agreed to pay her child support even though we were equally sharing time with our children. Since she wasn’t working, it seemed fair at the time.

Now it appears that she has no intention of going to work as her parents, who are somewhat wealthy, provide virtually everything for her. She has no need to work and seems to be living off of me and her parents. Since we share time equally, can I go back to court and get the judge to order a termination of my duty to provide for her?

We are a little amazed by the number of questions that are based on a belief that equal time with children somehow equates to there being no duty to pay child support. The duty to support is based on much more than simply looking at the percentage of time a child spends with each parent.

First, you must realize that the support you have referred to is for your children, not your former wife. Although she may benefit indirectly, we are pretty certain that the judge who reviewed your agreement was approving the amount you were paying as a contribution toward the support of the children, not your wife. We must also presume that the amount was fair or you wouldn’t have agreed to the amount.

While the amount of child support is always modifiable, in order for you to successfully obtain a reduction, you must be able to show a change of circumstances from those that existed at the time of the last order. On the surface it appears as though absolutely nothing has changed. You still divide time equally. She is still unemployed. Presumably, her parents were somewhat wealthy when you were divorced. While this issue might have been addressed in the original divorce agreement, we have also assumed that you have no special language in yours’ that might have clarified your intent.

Ohio law very clearly specifies that both parents have a duty to support their children. It further provides that the court must consider each party’s earning ability when making an order of support. Since your wife had some earning ability at the time of divorce, you could have addressed that issue when negotiating the terms of your agreement.

Common sense might dictate that it is reasonable for the court to expect both parties to work and contribute to the support of their children. However, a party who fails to work is simply treated as if he or she has income. That “imputed” income should have been used in calculating the support. Then, if your wife wanted to stay home and live off of others, she would only receive the amount of support that would have been ordered if she did work. If you didn’t make that calculation when negotiating, you should have had the agreement drafted to spell out your intentions. The court will not guess as to what you were thinking.

Dear Jeff & Andrew:

How do I force my ex-husband to pay me his share of medical expenses that were incurred for our daughter? The divorce decree says that we should equally share uncovered expenses. During this year alone, he would owe me $700 but he simply refuses to talk with me. Can I do something on my own like take him to Small Claims Court? Do I have to hire a lawyer to chase the money that is rightfully mine?

The only way to enforce a provision of a divorce decree is to go back to the Domestic Relations Court. First, you need to make sure that you have provided him with all of the information on the uninsured medical expenses incurred on your daughter’s behalf. Then you must request reimbursement. Assuming that you have done that, your only remedy is to file a contempt action with the court.

The court may award you some attorney fees if your ex is found to be in contempt so that may take some of the sting away. Frequently, these matters are resolved once the contempt action is filed (and after the person in your shoes has incurred some expense).

Often times a lawyer will begin the process by sending a letter to your ex indicating that a contempt action and a request for attorney fees will be filed if reimbursement is not made in a timely fashion. If that doesn’t do the trick, your only remedy is to file with the court. Just make sure you have already provided him with copies of the bills.