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What Florida Law Requires the Courts to Do Before Punishing Spouses for Not Paying Their Alimony

If you have a court order that obligates you to pay a reasonable amount of alimony to your ex-spouse and you’re capable of paying it, then the best thing you can do is… pay it. Of course, life isn’t always that simple, especially in this time of coronavirus-fueled economic instability, which is affecting more and more ex-spouses who are under court orders to pay alimony. If your court-ordered amount is more than you can pay or is otherwise unreasonable, then you should reach out as soon as possible to an experienced South Florida family law attorney so that your attorney can begin working on getting your alimony obligation modified.

Simply allowing yourself to fall behind on alimony is almost never the right answer, and can come with some serious consequences. However, even if you have made the mistake of racking up an alimony arrearage, failure to pay does not mean that you are without any rights. You are still entitled to certain legal protections and there are still certain processes and procedures the court must go through before administering certain penalties.

As an example, we can look at a recent alimony case from Broward County. That husband owed alimony to his ex-wife in excess of $600,000, and the wife filed a motion to find the husband in contempt.

The trial judge issued something called a “writ of bodily attachment.” This is the court order that permits law enforcement officers to place you under arrest for a civil (as opposed to criminal) wrong. It is also a required precursor to putting you in jail for failure to pay the court-ordered “purge amount.” (The “purge amount” is the sum you must pay to avoid being held in contempt and facing penalties up to and including jail time.)

What are the protections that exist for spouses who owe alimony?

If the trial court holds a contempt hearing at which you’re not present and does issue a writ, there are several ways to get that writ thrown out. For one thing, you can show that you did not have proper notice of the hearing. If you didn’t have notice of the hearing but the court proceeding with the hearing (and with issuing the writ) in your absence, then that generally qualifies as a violation of your constitutional right to due process of law.

Even if you did have sufficient notice of the hearing, there can still be ways to defeat a writ. If you did not attend but did receive satisfactory notice, then the court is required to follow a particular procedural process before issuing the writ, which is the one outlined in Rule 12.615(c)(2)(B) of the Florida Family Rules of Procedure. That rule says that the judge must “set a reasonable purge amount based on the individual circumstances of the parties.”

If the judge sets a purge amount without making a specific finding about the amount being reasonable based on the ex-spouses’ individual circumstances, then that writ is vulnerable to being thrown out. (That, by the way, was what happened in the case from Broward County. The trial judge did not make a finding that the purge amount was reasonable under the spouses’ individual circumstances, so the husband got the writ reversed on appeal.)

Even if the writ is valid under the law and the rules of procedure, there’s still another hurdle the court must clear before you can be placed in jail. Before a court can order you to jail for your failure to pay, the court has to make a separate finding that you had the “present ability” to pay your purge amount. Without that explicit finding, an order placing you in jail is improper and subject to reversal.

Whether you find yourself in the position of seeking alimony, opposing an award of alimony or seeking modification of an existing alimony order, you need the right legal team with the right experience on your side. Rely on the knowledgeable South Florida family law attorneys at Sandy T. Fox, P.A., who have been successfully helping Florida spouses for many years to deal with their alimony and other family law issues. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation today.

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