While for some people receiving a final judgement and decree of divorce means freedom and the end of divorce nightmare and financial difficulties, for others the final order marks the beginning of a new excruciating phase called “post -judgement collections”, especially in divorce and child support cases.
For example, if the court’s order states “Investment account number 2222 shall be divided 50/50 by wife via wire transfer to husband” or ‘husband shall pay wife $300,000.00 as part of the assets division”, some law abiding citizens will do so. Some others would take the court’s order as a suggestion. Which leads us to an interesting and complex topic of enforcement of the court orders and post-judgement collections in divorce and child support cases.
In general, the most important basic Family Law rule to know in the State of Georgia as it relates to enforcement of the divorce orders is that the court CANNOT modify property division orders post-divorce. No matter how badly the final order is written, or how unfair the judgement is – no modification are possible with the super rare exceptions of fraud, non-disclosure of assets, etc. Every single word in the judgement matters from the standpoint of subsequent enforcement and collections.
If the division of property is not clear from the order and the division was done by the consent of the parties – the court cannot provide any additional clarification or modify the division in any way. This is why it is very important for the parties to carefully review all the settlement documents line by line and ask their attorneys questions to make sure the parties understand what they are agreeing to and what would happened after the divorce. As one of my most favorite professors from Emory Law school would always say: every obligation in the contract shall be written in the way that makes it apparent – who does what how and within what timeframe. In addition, there should always be a consequence if one of the parties does not comply with the obligations of the agreement/order. One of the most common examples – the parties agree to allow one of the litigants to refinance the house and pay a part of the equity to the other party in the litigation. However, if there is no plan “B” and the responsible party fails to refinance mortgage in time and/or pay part of the equity – the court cannot order sale of the house and division of the proceeds – because the court does not have power to modify the agreement of the parties on division of assets.
As a caveat, if division of the assets or any other issues were done via trial – the parties still have an option to go back to court and ask the court for clarification of the judgement entered.
Another interesting fact is that if you have a money judgement (for example, division of the bank accounts or a child support order) that the other party does not comply with – in the subsequent litigation you might be able to ask for interest rate on the money you have not received timely.
O.C.G.A.§ 7-14-12 (a) states:
“All judgments in this state shall bear annual interest upon the principal amount recovered at a rate equal to the prime rate as published by the Board of Governors of the Federal Reserve System, as published in statistical release H. 15 or any publication that may supersede it, on the day the judgment is entered plus 3 percent.” This means that if you were entitled to receive a sum on money in the litigation including in family court and you have not received it on time, you can ask for the accrued interest rate on the money you have not received in the subsequent enforcement/contempt litigation. The current prime rate is 8.5%, plus 3 additional percent per O.C.G.A. §7-14-12, is 11.5% interest rate which is added annually to the amount owed. If the judgment is rendered on a written contract or obligation providing for interest at a specified rate, the judgment shall bear interest at the rate specified in the contract or obligation (O.C.G.A.§ 7-14-12 (b)).
For example, if you were awarded a payment of $100,000 in the divorce decree and that payment was not made for for years, you can ask for interest rate for five years to be calculated and to be added to the principle amount outstanding.
Georgia legislators specifically determined that the post judgment interest shall apply automatically to all judgments in this state and the interest shall be collectable as a part of each judgment whether or not the judgment specifically reflects the entitlement to post judgment interest and that such rule shall apply to all civil actions filed on or after July 1, 2003 (O.C.G.A. §7-14-12).
We, at The Manely Firm, P.C. have successfully applied that statute and assisted our clients in recovery and enforcement of the divorce and other orders. We helped our clients to recover the interest rate which in some cases adds up over the years to a very large sum – in addition to helping the clients recover the attorney’s fees related to contempt and enforcement.
You don’t want to be your ex’s banker. But if you find yourself in that position, at least know there is interest on their debt to you.