Ex not paying on joint debt

[basscatcher]

What is the name of your state (only U.S. law)? MN

My ex and I were divorced in 2005. We have a joint/consolidated student loan that we are both court ordered to make payments on. She has placed the loan in deferment status too many times to count, so that no payment was required (I still made my payments during that time). She used up all deferment options and now is more than a year overdue with with making any payments to the loan. When the loan eventually came out of deferment I increased my payments just so that the minimum payments would be made to avoid late payment and credit issues.

In Nov. 2013, we informally agreed (no court order) to each refinance our respective portion of the joint debt so that we wouldn't have to deal with the joint debt any more. My portion was refinanced/paid off in December. She has not yet refinanced her portion. Part of our agreement was that if she didn't take care of it within by the end of January, I would seek legal action on account of her not making her monthly court-ordered payments. I should note that no payments are currently required from the lendor because it is in a pre-paid status (from my payment/refinance).

Here's the problem... my research seems to indicate that contempt of court can only be awarded due to failure for paying spousal support or child support. Any other financial issues would have to go through conciliation court. So that's what I researched next. But that seems to indicate that I can only bring her to conciliation court if she owes me directly. That's not the case here - she owes a 3rd party debtor.

It seems that the only action I can take is to keep on nagging her about getting it done. If there are any other legal options that I could pursue, I would appreciate learning about them. Based on her history of not making payments to the account, I'm nervous of any negative credit issues it may cause for me.

Thank you!

 

[Ladyback1]

What is the name of your state (only U.S. law)? MN

My ex and I were divorced in 2005. We have a joint/consolidated student loan that we are both court ordered to make payments on. She has placed the loan in deferment status too many times to count, so that no payment was required (I still made my payments during that time). She used up all deferment options and now is more than a year overdue with with making any payments to the loan. When the loan eventually came out of deferment I increased my payments just so that the minimum payments would be made to avoid late payment and credit issues.

In Nov. 2013, we informally agreed (no court order) to each refinance our respective portion of the joint debt so that we wouldn't have to deal with the joint debt any more. My portion was refinanced/paid off in December. She has not yet refinanced her portion. Part of our agreement was that if she didn't take care of it within by the end of January, I would seek legal action on account of her not making her monthly court-ordered payments. I should note that no payments are currently required from the lendor because it is in a pre-paid status (from my payment/refinance).

Here's the problem... my research seems to indicate that contempt of court can only be awarded due to failure for paying spousal support or child support. Any other financial issues would have to go through conciliation court. So that's what I researched next. But that seems to indicate that I can only bring her to conciliation court if she owes me directly. That's not the case here - she owes a 3rd party debtor.

It seems that the only action I can take is to keep on nagging her about getting it done. If there are any other legal options that I could pursue, I would appreciate learning about them. Based on her history of not making payments to the account, I'm nervous of any negative credit issues it may cause for me.

Thank you!

I'm no expert, but it would seem to me that you could file a constructive contempt of court complaint with the clerk of court (with the judge/court in which the matter was first handled)
https://www.revisor.leg.state.mn.us/statutes/?id=588&view=chapter#stat.588.01

 

[Proserpina]

I'm no expert, but it would seem to me that you could file a constructive contempt of court complaint with the clerk of court (with the judge/court in which the matter was first handled)
https://www.revisor.leg.state.mn.us/statutes/?id=588&view=chapter#stat.588.01

It's not clear that wifey is actually breaching the court order at this point. Even if the court can hold her in contempt, it doesn't help OP too much; the debt is still owed and the court can't garnish wifey in this situation (at least not for the tax debt). I'm also concerned that the order might be too vague as to be basically unenforceable.

They were both ordered to pay - but were they ordered to pay within a certain time? The refi wasn't court ordered, and it also won't help the OP since IRS can very easily step in and interfere with garnishments and tax refunds and all of that fun stuff.

Clarification would be good.

 

[Zigner]

The ex isn't late on any required payments.

 

[basscatcher]

It's not clear that wifey is actually breaching the court order at this point. Even if the court can hold her in contempt, it doesn't help OP too much; the debt is still owed and the court can't garnish wifey in this situation (at least not for the tax debt). I'm also concerned that the order might be too vague as to be basically unenforceable.

They were both ordered to pay - but were they ordered to pay within a certain time? The refi wasn't court ordered, and it also won't help the OP since IRS can very easily step in and interfere with garnishments and tax refunds and all of that fun stuff.

Clarification would be good.

The order only states that we are each to make a prorated monthly payment to the debt - me $200, her $110. There is no specific timeline for payoff. I do understand that the court would not be able to garnish funds, but the thought of having a contempt judgment against her may be enough to prompt some action on her part.

Not sure where the IRS stuff is coming from - they're not involved here.

If I understand the other poster here, if there is no requirement of payment from the debtor, she would not be violating the order - even though it states to make monthly payments. Is that correct? It sort of makes sense, but I still don't like it. ;-)

 

[Zigner]

If I understand the other poster here, if there is no requirement of payment from the debtor, she would not be violating the order - even though it states to make monthly payments. Is that correct? It sort of makes sense, but I still don't like it. ;-)

See, there's the problem. You didn't originally SAY that there was a specific monthly amount ordered

 

[basscatcher]

See, there's the problem. You didn't originally SAY that there was a specific monthly amount ordered

I apologize; I could have been more clear on that. Yes, the court order specifies a monthly amount that we are each supposed to pay. I can show that she has not been paying her amount. But it appears that I may not have any legal options open to me to show the court. Or do I?

 

[Proserpina]

The order only states that we are each to make a prorated monthly payment to the debt - me $200, her $110. There is no specific timeline for payoff. I do understand that the court would not be able to garnish funds, but the thought of having a contempt judgment against her may be enough to prompt some action on her part.

Not sure where the IRS stuff is coming from - they're not involved here.

If I understand the other poster here, if there is no requirement of payment from the debtor, she would not be violating the order - even though it states to make monthly payments. Is that correct? It sort of makes sense, but I still don't like it. ;-)

The IRS "stuff" is coming from a very simple little fact.

This is a student loan.
You have to pay student loans.
If you don't, IRS can step in and make sure that you do. IRS is not bound by your divorce decree.

Clearer?

Again though, it might not help you at all. Slap on the wrist? Sure. Fine, even? Possible, yep. But if someone is determined to get out of a debt, they'll move heaven, earth and all things inbetween.

So you need to ask yourself how much your good credit is worth.

 

[single317dad]

Ex is apparently in violation of the court order. You should pay the debt as originally agreed (between you and the creditor) to protect your credit rating, and avoid garnishments and seizure of property. You should return to court and submit a show cause order and affidavit of the facts surrounding the failure to comply:

http://www.mncourts.gov/default.aspx?page=513&item=362&itemType=formDetails

588.04 ARREST; ORDER TO SHOW CAUSE.
(a) In cases of constructive contempt, an affidavit of the facts constituting the contempt shall be presented to the court or officer, who may either issue a warrant of arrest to bring the person charged to answer or, without a previous arrest, upon notice, or upon an order to show cause, which may be served by a sheriff or other officer in the same manner as a summons in an action, may commit the person to jail, impose a fine, or both, and make such order thereupon as the case may require.
(b) When the underlying case involves an obligation arising out of a consumer debt primarily for personal, family, or household purposes, and the contempt is a failure to comply with judgment debtor disclosure requirements under section 491A.02, subdivision 9, or 550.011, bail must be set at $50. For a subsequent contempt for a failure to disclose in the same action, bail must be an amount set by the court after considering aggravating and mitigating factors. Bail posted under this section must be returned to the judgment debtor.

A hearing will be held to give the ex the opportunity to show cause why she should not be held in contempt of court for failure to pay the bill as ordered. The result may vary, from no action by the court, to jail. Minnesota's statute does not mention the word "willful", so it's a little stricter than many:

https://www.revisor.leg.state.mn.us/statutes/?id=588&view=chapter

(3) disobedience of any lawful judgment, order, or process of the court;

The words "willful" and "prejudiced" make their appearances later, in the statute for punishment and award of attorney's fees, which is not applicable:

588.02 POWER TO PUNISH; LIMITATION.
Every court and judicial officer may punish a contempt by fine or imprisonment, or both. In addition, when the contempt involves the willful disobedience of an order of the court requiring the payment of money for the support or maintenance of a minor child, the court may require the payment of the costs and a reasonable attorney's fee, incurred in the prosecution of the contempt, to be paid by the guilty party. When it is a constructive contempt, it must appear that the right or remedy of a party to an action or special proceeding was defeated or prejudiced by it before the contempt can be punished by imprisonment or by a fine exceeding $50.

Other code sections also of interest:

588.10 PENALTIES FOR CONTEMPT OF COURT.
Upon the evidence so taken, the court or officer shall determine the guilt or innocence of the person proceeded against and, if the person is adjudged guilty of the contempt charged, the person shall be punished by a fine of not more than $250, or by imprisonment in the county jail, workhouse, or work farm for not more than six months, or by both. In case of the person's inability to pay the fine or endure the imprisonment, the person may be relieved by the court or officer in such manner and upon such terms as may be just.
History: (9802) RL s 4648; 1933 c 267; 1986 c 444
588.11 INDEMNITY TO INJURED PARTY.
If any actual loss or injury to a party in an action or special proceeding, prejudicial to the person's right therein, is caused by such contempt, the court or officer, in addition to the fine or imprisonment imposed therefor, may order the person guilty of the contempt to pay the party aggrieved a sum of money sufficient to indemnify the party and satisfy the party's costs and expenses, including a reasonable attorney's fee incurred in the prosecution of such contempt, which order, and the acceptance of money thereunder, shall be a bar to an action for such loss and injury.
History: (9803) RL s 4649; 1945 c 434 s 2; 1986 c 444
588.12 IMPRISONMENT UNTIL PERFORMANCE.
When the contempt consists in the omission to perform an act which is yet in the power of the person to perform, the person may be imprisoned until the person performs it, and in such case the act shall be specified in the warrant of commitment.
History: (9804) RL s 4650; 1986 c 444