Alimony

[IMars]

What is the name of your state? California

My divorce was final in November of 1999, as part of the decree I was awarded 1,200 a month spousal support.

I am not working anymore, and have be diagnosed recently with a health problem, so I have no income right now. (health problem is not enough for me to be disabled, so I am looking into unemployment until the doctors find the right medication for and I can find a job)
The problem is that last week my ex was here to see his sons, (he currently is remarried and lives out of state), he still had his job here in california, he worked part time at home, and the company would fly him out here when the need would arise. Anyway he got layed off from this job and has told me he cannot give the 1,200 dollars a month anymore, and he would see what he could do. Also in the divorce decree he was suppose to provide our youngest son health insurance though his work, until he was finished with college, well that is gone also. Both of our sons are currently living with me the youngest still in college, and working part time for the summer. The oldest just recently graduated from college and is in the process of getting employment.

Can my ex just say "I don't have the money anymore so I can't pay you the 1200 anymore, only what I can. What he can? I don't even know how much that would be???
The bottom line is if I don't get the 1200 from him, I could lose my house etc...
What options do I have?
Thanks for any help...


I

 

[I AM ALWAYS LIABLE]

My response:

Then, you do whatever it takes to bring in an income, despite any medical maladies you may have. You obviously need to because there's going to be a gap between his ability to pay and obtaining an order to "force" him to pay and comply with the court order.

Long-standing precedent forbids a contempt adjudication against a person for failing to seek employment in order to pay spousal support. [Ex Parte Todd (1897) 119 Cal. 57, 58, 50 P 1071--court has no power to "compel a man to seek employment in order to earn money to pay alimony, and punish him for his failure to do so"; In re Jennings (1982) 133 Cal.App.3d 373, 381-385, 184 Cal.Rptr. 53, 57-59]

Todd, which is the seminal case on this issue, gave no rationale for its holding. Jennings, however, interpreted Todd as containing a clear implication that Federal and State constitutional provisions barring involuntary servitude were applicable. [In re Jennings, supra, 133 Cal.App.3d at 386, 184 Cal.Rptr. at 60--"contempt may not be applied to incarcerate (spousal support obligor) because he is unemployed"]

For an alleged failure to pay spousal support, the contempt action must be commenced no later than three years from the date the payment was due. [Ca Civ Pro § 1218.5(b); Moss v. Super.Ct. (Ortiz) (1998) 17 Cal.4th 396, 403, 71 Cal.Rptr.2d 215, 219, fn. 2]

Exception--substantial gap between order and disobedience:
The rationale supports the rule where the alleged contempt (nonpayment) occurs soon after entry of the underlying order. But the result is otherwise where the alleged contempt occurs long after the underlying order was entered; an adjudication of the obligor/citee's ability to pay years before filing of the contempt charge "is no sound proof of that fact" under conditions existing at the time of the contempt hearing. In the latter case, the burden of proving ability to pay remains with the charging party as part of the prima facie case. [In re Ivey, supra, 85 Cal.App.4th at 798-799, 102 Cal.Rptr.2d at 451--"Ability to pay becomes an element of the contempt only when the alleged contempt occurs many years after the underlying order"; Mery v. Super.Ct. (1937) 9 Cal.2d 379, 380-381, 70 P.2d 932, 933 (alleged contempt for failure to pay spousal support 10 years after entry of order)]

Inability to comply:
Contempt charges are commonly defended on the ground that any failure to comply with the underlying order was not "wilful" because the citee lacked the ability to comply.

Indeed, for those contempts as to which ability to comply is not an element of the prima facie case (child support and most family law monetary order contempts, the burden is on the citee to allege and prove inability to comply as an affirmative defense. [Moss v. Super.Ct. (Ortiz) (1998) 17 Cal.4th 396, 427-428, 71 Cal.Rptr.2d 215, 235-236; In re Ivey (2000) 85 Cal.App.4th 793, 798-799, 102 Cal.Rptr.2d 447, 451]

The citee does not meet this burden, however, with conclusory declarations. He or she must set forth evidentiary facts showing why complete performance was impossible. Moreover, default under the order will not be excused if the responding allegations disclose that the inability to comply was self-imposed for the purpose of avoiding compliance. [In re Spencer (1890) 83 Cal. 460, 465, 23 P 395, 397; see Moss v. Super.Ct. (Ortiz), supra, 17 Cal.4th at 401, 71 Cal.Rptr.2d at 217--inability to pay child support by wilful refusal to seek and accept gainful employment defeats inability to comply defense]

IAAL

 

[vrzirn]

The law, ably cited by IAAL, is one thing, but the practical consequence, especially for someone with small financial resources, is something else.
The ex, finally dragged into court for the failure to comply, may have an attorney determined to stall. The ex may present full documentation of inability to pay and, despite a contempt ruling, will file an appeal. Months may elapse.
Our poster did not say for how long a period she was to receive alimony. Practically speaking, in addition to getting a job, I suggest a negotiation for a lump-sum settlement. Although it may be far less than she might get if all court orders were complied with and the alimony period ran it's full term, it will save lots of time, aggravation, and attorney fees. The health insurance for the younger son could be part of the package.

 

[IMars]

Answering the question how long i was granted alimony....until I remarry or either one of use dies.

Thanks for info.

 

[vrzirn]

At the time you received that award he was probably burdened with guilt and you thought you hit a small jackpot. As you see, things change; no more guilt and no more jackpot. He can stall until you are in foreclosure.
Speak to your attorney. I remind you that if your ex keeps filing appeals your attorney will soon press for a settlement since wou cannot afford to pay him indefinitely. If you get $30k + attorney fees you will spare yourself lots of pain.
This is not a matter of what is right or equitable. It is a matter of what is practical and the best you can achieve. Forgive the pun, but no one wants to keep buying hay for a dead horse forever.
My personal opinion is that a "forever alimony award" is unconscionable.

 

[IMars]

I didn't think I hit a jackpot, as a matter of fact I reduced the monthly amount, which my lawyer thought I was foolish for doing.
Believe me I did not expect to have him pay me "forever", I personally think to expect it forever is unrealistic, just right now is was not the best time for me to not receive it anymore. With my current health condition, I am not allowed to drive, which makes my job search just that much more difficult, and the down turn in the job market here in the silicon valley it is even more difficult, but I do intend to go back to work as soon as possible.

But thanks for the advice and input...it helped me make my decision....