Author: Chelsea Kancilia
Co-Author: Gregg Greenstein
My Ex Didn’t Pay Me!
It can be frustrating when you ex does not pay your child support, expenses or maintenance as ordered by the Court in your settlement agreement or in your permanent orders from your divorce or parental responsibilities case. Here’s what you need to know about how to collect on missed support and expense payments in Colorado family law matters.
Under C.R.S. (Colorado Revised Statute) § 14-10-122, each monthly child support payment that is not paid automatically becomes a judgement. However, to make the judgement enforceable, the obligee (the person to whom money is owed) needs to file a Verified Entry of Support Judgement with the Court. The obligee can choose to file a Verified Entry of Support Judgement after each payment is missed or the obligee can wait until a few payments are missed and file a Verified Entry of Support Judgement every few months.
Once the Verified Entry of Support Judgement is ordered by the court, the obligee can decide how to collect the judgement.
One way to collect the judgement is through the obligor’s (the person who owes the money) income. If the obligor has a job that pays wages, the obligee can file an income withholding order requiring the employer to pay the obligee directly.
Another way to collect on the judgement is through any real property owned by the obligor. To collect on any real property of the obligor, an obligee first needs to ask the court for a “transcript of judgment.” The obligee then records the transcript of judgment at the Clerk and Recorder’s Office in the county where the obligor owns property and attaches the judgment on a real estate that the obligor owns. Once the transcript of judgment is recorded, the obligee has an “encumbrance” on the property, meaning that whenever the real estate is sold, the judgment shall be paid out upon any sale of the real estate. The encumbrance also shows up in the real property records.
An obligee can have a writ of garnishment issued by the court, which will then be served on a bank, investment company or other person who holds money or property for the obligor. The person in charge of the money or property is then obligated to pay or deliver the property for the benefit of the obligee.
An obligee can also have the sheriff seize non-exempt personal property (for example, cars, jewelry, musical instruments, etc.) through a writ of garnishment. Retirement account and disability insurance payments are types of personal property that are exempt from garnishment.
Missed child support payments add up quickly because they have a very high interest rate. The interest rate depends upon when the child support became due. For payments that were due before July 1, 2021, interest accrues at 12%, compound monthly according to C.R.S. § 14-14-106(1)(a). For payments due after July 1, 2021, interest accrues at 10% compounded annually according to C.R.S. § 14-14-106(1)(b). The court does not have discretion to modify the interest rate or the compounding period but the obligee can waive interest.
Missed maintenance payments, like child support payments, become a judgement automatically according to C.R.S. § 14-10-122. As with child support payments, in order to make a judgment enforceable the obligee needs to file a Verified Entry of Support Judgement with the Court. The obligee can choose to file a Verified entry of Support Judgement after one missed maintenance payment or can wait to file a Verified entry of Support Judgement after a few payments are missed.
Once the verified entry of judgment is ordered by the court, the obligee can decide how to collect on the judgment the same way as listed above – by attempting to collect on income, accounts, personal property, or real property of the obligor.
Interest accrues on these missed maintenance payments, however, the rate is not as high as missed child support payments. In absence of an agreement or provision of the law setting a different amount, the interest rate accrues at 8% compounded annually according to C.R.S. § 5-12-101.
An ex-spouse can also collect a judgement on expenses that were court ordered to be paid by the other side but remain unpaid on time. For example, if a court ordered a father to pay for a percentage of a child’s medical expenses or activities and the father failed to pay those expenses, the mother who was not paid can attempt to collect the missed payments.
Unlike missed child support and maintenance payments, these types of missed payments do not automatically become a judgement. Therefore, the first step that an obligee would need to do is file a motion for entry of judgment to determine liability and amount.
Once the Court has determined that the obligor is obligated to pay the expense and the amount the obligor is to pay, the Court will then enter a “judgment” against the obligor. After the judgement is entered, the obligee would need to file a Verified Entry of Support Judgement with the Court. Once a Verified Entry of Support Judgement is ordered by the Court, the obligee would then decide how to collect on the judgement as described above – by attempting to collect on income, accounts, personal property, or real property of the obligor.
Interest does accrue on these missed payments, but the rate is not as high as it is for missed child support payments. In absence of an agreement or provision of the law setting a different amount, the interest rate accrues at 8% compounded annually according to C.R.S. § 5-12-101.
A person who is court ordered to pay money to another person might be found guilty of “contempt of court” if he or she fails to pay as ordered. Contempt may be “remedial” or “punitive.” Remedial contempt is usually used to force the other side to comply with the order – in this case to pay you what you are owed or else go to jail. Punitive contempt is intended to punish the person who is not making payments and the sanctions can include jail time and fines.
Because contempt of court can be punishable by jail, the obligor must be personally served with the motion. This can cause complications if the person seeking payment does not know where the obligor is. The obligor must be served twenty-one (21) days before the hearing on the motion for contempt.
To prevail on remedial sanctions which are designed to “remedy” the contempt, you must prove by a preponderance of the evidence that the obligor: (1) did not comply with a lawful order of the court; (2) knew of the order; and (3) has the present ability to comply with the order. The burden of proving inability to comply with the order rests on the person who failed to pay.
To obtain punitive sanctions which are designed to punish the contempt, you have to prove beyond a reasonable doubt (this is a higher standard than for remedial sanctions): (1) the existence of a lawful order of the court; (2) the contemnor’s knowledge of the order; (3) the contemnor’s ability to comply with the order; and (4) the contemnor’s willful refusal to comply with the order. This is the same standard that is applied in criminal cases, so it is a high burden to meet.
Following a hearing on the contempt motion, the Judge or Magistrate will decide if the person who failed to make payments is in contempt, and if so, what punishments and remedies to impose. An award of attorney fees and expenses can be made against obligor, as a remedial sanction if remedial sanctions are warranted.
There are some disadvantages to filing a contempt motion, particularly against someone you have to co-parent with for the foreseeable future. Some disadvantages include (1) additional bad feelings between you and your ex, (2) your ex is likely to further badmouth you to your children, and (3) incurring additional legal costs to pursue contempt. Although the law does allow you to get an award of attorney’s fees against your ex, it is up to the Judge whether fees are ordered and how much you will receive. Additionally, your ex could still choose not to pay your attorney’s fees, which force you to incur further legal fees to try to compel him or her to pay.
You have options if your ex is not making court ordered payments! Gregg Greenstein can assist you in getting paid what you are owed.
Chelsea Kancilia is no longer with the law firm of Frascona, Joiner, Goodman and Greenstein, P.C. For questions about this article, please contact attorney Gregg Greenstein.