For the most part, if you have a well-drafted separation agreement or even a very basic court order, you should be clear on what, exactly, needs to happen to wrap everything up with a nice little bow on top once your divorce is finalized. Sometimes, though, that is not the case – whether because of less-than-ideal attorney work or a court order that doesn’t delve into the necessary details – and you’ll need to take some extra steps to make sure that you get the benefit of everything that you were entitled to receive in your divorce case.
Now, first thing’s first: the best agreements (and court orders) include specifics, like deadlines, especially when money is supposed to change hands. In an ideal world, you’d be watching out for this during the divorce process to make sure that things are as clear as they could possibly be. If that’s not the case, then you may have to do some extra work.
Sale/Refinance of the Marital Residence
Your agreement or court order should specify what will happen to the marital residence and then, if it’s sold or refinanced, exactly how the proceeds (or even the liabilities, if you’re underwater) will be split. If one party is receiving money to buy out their interest, the agreement/court order should specify a timeline for the refi and how, exactly, those proceeds would be forwarded to the party being bought out.
Other items on the list – like completing a quitclaim deed, if necessary – should be included, both parties should agree to cooperate, and a general ‘time is of the essence’ provision is nice to include as well.
If the parties are going to work with a realtor, if they’re going to raise or lower the sales price, if they are required to (or refuse to) improve the property to facilitate the sale, those specifics should be included, too.
If there’s not a deadline, it’d be up to the judge whether his failure to act would be actionable and whether anything would be recoverable (like damages or attorney’s fees) – this is why it’s so important to have specifics handled ahead of time, because they take the guesswork out of litigation. Most likely, the judge would just order the sale or refi to take place within a specific period of time. Not ideal, in the sense that you already had to take him back to court to get him to comply, but better than having no deadline in place.
Paying Marital Debt
If your agreement includes a provision regarding payment of debt, you can take care of that without a court order. If you’re paying him, you should do so electronically – PayPal, Venmo, whatever is fine – so that you have a record of the transaction. Ideally, you’d include in the memo field what, exactly, your payment is for, too, so that you can trace it back to the original agreement or court order. If the court sees you’re supposed to pay him $1,123.73 and you have a transfer in that exact amount with a memo that it is for payment of debt pursuant to your separation agreement, it’ll be very clear what happened.
Likewise, he could make payment similarly. He could also do a direct deposit, pay you in cash, or whatever else – but, if I were his lawyer, I’d also tell him to do it electronically so there’d be proof. But if your agreement is silent on how, exactly, this will take place, then he can choose how.
If the debt is related to a credit card, you’ll probably also want to either close your accounts or remove your former spouse as an authorized user.
Dividing Bank Accounts
Similarly, you can handle division of bank accounts yourselves. Whatever your agreement or court order says, that’s what you do – whether you close the account and split the proceeds, or whether one party takes over ownership and control of the account (and any portion or all of the funds contained therein).
You can transfer these funds, usually electronically, and the bank records should be able to confirm that this took place. If it’s in the court order or your agreement, it’s on you to effectuate the terms. If he’s dragging his feet or refusing to give you your portion, you will have to file a show cause to recover it.
Division of Retirement Accounts
Sometimes, retirement accounts can be the trickiest of all. Depending on what, exactly, you’re dividing, you might need another court order to effectuate the transfer. Ideally, your attorney will have handled that in the divorce – but, sometimes, that doesn’t happen.
For a TSP or IRA, you just need an order. For tax deferred accounts, like a 401(k) or a 403(b), you’ll need a QDRO (Qualified Domestic Relations Order). For pensions, there are specific orders needed as well. For the military, we’ll need to send your final order in to DFAS – hopefully it has all the right information in it already!
What if my ex is ordered (or agrees) to do something and doesn’t do it?
Getting it in writing is only half the battle, right? Sometimes, even when it’s right there, in black and white, the other party refuses to follow through. Whether it’s too expensive or they’re just plain lazy (or even trying to continue to abuse you post-separation), you may have to hold their feet more forcefully to the fire, even with an agreement or court order already in place.
You can file a ‘show cause’ petition to get him to comply with the terms of the agreement. Ideally, too, your existing agreement or court order will include a provision that, if you have to take one party to court to enforce the agreement, you are entitled to attorney’s fees if you prevail. That way, even if you are inconvenienced by having to go to court again, you can at least recover the associated attorney’s fees. Even if you don’t have this provision in place, you can ask for attorney’s fees, but it would be subject to the judge’s discretion whether your request would be granted.
It may seem daunting, but usually it isn’t. Many things – like bank accounts and cars and debt – you just wrap up yourselves, after the divorce is finalized. If someone doesn’t follow through with their end of the deal, you can show cause them and even ask for attorney’s fees. Retirement is probably the most complicated, especially if you didn’t get your QDROs or other orders entered concurrent with your divorce, but we are definitely equipped to help you with post-divorce enforcement issues, too.
For more information or to schedule a consultation, give our office a call at 757-425-5200.