Spousal Support - could not afford after 9 years - court hearing scheduled

[trueheart0923]

State is Nevada.

Divorce occurred May 2001. Monthly spousal support (MSS) was set forth in the Marital Settlement Agreement (MSA) for 11.5 years or 138 months, ending November 2012. Significant asset shift occurred as well. We had two homes to divide in addition to much personal property and some investments. There was an "equalizing" promissory note (in favor of my ex) which I paid off by 2003 by refinancing the home that I kept. Three kids were involved, with me being responsible to pay for education, living costs, cars, insurance, etc. I did all of this, and even exceeded what was stipulated. I was generous when I had the funds to do so, but my overall financial situation has deteriorated steadily since 2007 so my generosity got forcibly reigned in along the way. I have not been regularly employed since December 2005, though I spend effort to change this.

I paid stipulated amount (MSS) timely until August 2010, or for the first 112 months. In August 2010, I could no longer afford the total amount of MSS, and my ex-spouse and I did a MSA addendum #1 (notarized and no attorneys involved) to lower the monthly amount I would remit to $500. We did not lower the obligated amount, so each monthly payment was "short" starting in August 2010. The amount of "shortage" accumulated, with the intention that when I sold my house, I would catch up on back amounts owed.

My house did not sell as hoped and in November 2012 (the date which would have been the end date for MSS had I made all prior MSS payments in total) I stopped making MSS payments ($500/month) as I could not afford it. It was a convenient point to stop as well, as the previously thought to be stop date had arrived. We did a MSA addendum #2 (again notarized and no attorneys involved) to set forth the amount outstanding (shortage of payments from August 2010 to November 2012). Interest at 3% on the outstanding amount was to accrue starting November 2012 until paid, with the expectation that I would pay all sums due when my house sold. In addendum #2 we stated that the total would be due when my house sold or by November 2013, whichever occurred first. My house did not sell.

In early November 2013, my ex-spouse, now using an attorney, began approaching me in a formal and legal way. My ex-spouse has not communicated with me directly for almost one year. We last had a somewhat heated discussion May 2013. Her recent "legal move" commenced in early November 2013 surprised me as we had worked out difficulties before, but apparently she has a different agenda in mind now. With no warning to me, no phone call, no email, no letter ..... a motion to show cause was filed with the court in early November 2013, but with no "request for submission" attached, so the court didn't advance that to reviewing it and getting involved at that point. I was told by the court clerk that the judge does not review any submissions without a "request for submission" attached to the filing. I perceived this first move as a threat to me hoping to bring me to the negotiation table to resolve matters. In late November 2013, attorney communicated (by mail) a settlement arrangement (prepped by my ex) that was unacceptable or undoable. At the end of December I sent my ex a memo outlining what I could do (not much) and reiterating that I had no funds to pay her, but that I would pay what was owed when my house sells. I've not received any response from my ex. The only communication I receive is from the attorney.

I believe her recent actions are rooted in some bitterness. In addition to the phone call last May, I got remarried in August 2013. Another interesting comment I picked up was from my youngest daughter who told me in December 2013 that "mom just wants to find out what is going on without talking with you". My daughter is 24 and living in mom's house at this time. It is noteworthy to include that my ex is employed and doing okay financially. She drives a new vehicle, while mine is 8 years old. She can take trips regularly and gives our kids $$$ at times. She can afford to send her dog to "day care" and contemplate a several thousand dollar surgery to prolong it's life for perhaps a couple of years. Just saying, the tide has turned. She can also afford an attorney at $300 per hour, while I cannot.

Now, in March 2014, a court ordered hearing has been set for early April directing me to appear and "show cause" ..... presumably why I should not be held in contempt.

I cannot afford an attorney ($300/hour). I must appear in court when requested (or ask for delay?). Although the attorney's paperwork seems to portray me as a deadbeat, my track record indicates otherwise. At this point, I've not attempted to ask the court for relief on spousal support due to hardship, and it may be too late for that anyway. It looks to me like the addendums changed the nature of what was owed from MSS to a promissory note of sorts, with some minor interest accruing, but the date for that to come to an end was November 2013, and without my house selling, I have no way to pay the outstanding amount.

I would appreciate any constructive comments or suggestions about my situation. Questions are welcome if more info is needed. I can represent myself politely in court, and I am reasonably good at figuring what to do "on the fly". I've dealt a lot in my professional life with attorneys and legal matters, but in this legal arena I'm sure there are aspects that could surprise me, and I need to avoid that.

Thanks for reading and considering the above.

 

[Bali Hai]

State is Nevada.

Divorce occurred May 2001. Monthly spousal support (MSS) was set forth in the Marital Settlement Agreement (MSA) for 11.5 years or 138 months, ending November 2012. Significant asset shift occurred as well. We had two homes to divide in addition to much personal property and some investments. There was an "equalizing" promissory note (in favor of my ex) which I paid off by 2003 by refinancing the home that I kept. Three kids were involved, with me being responsible to pay for education, living costs, cars, insurance, etc. I did all of this, and even exceeded what was stipulated. I was generous when I had the funds to do so, but my overall financial situation has deteriorated steadily since 2007 so my generosity got forcibly reigned in along the way. I have not been regularly employed since December 2005, though I spend effort to change this.

I paid stipulated amount (MSS) timely until August 2010, or for the first 112 months. In August 2010, I could no longer afford the total amount of MSS, and my ex-spouse and I did a MSA addendum #1 (notarized and no attorneys involved) to lower the monthly amount I would remit to $500. We did not lower the obligated amount, so each monthly payment was "short" starting in August 2010. The amount of "shortage" accumulated, with the intention that when I sold my house, I would catch up on back amounts owed.

My house did not sell as hoped and in November 2012 (the date which would have been the end date for MSS had I made all prior MSS payments in total) I stopped making MSS payments ($500/month) as I could not afford it. It was a convenient point to stop as well, as the previously thought to be stop date had arrived. We did a MSA addendum #2 (again notarized and no attorneys involved) to set forth the amount outstanding (shortage of payments from August 2010 to November 2012). Interest at 3% on the outstanding amount was to accrue starting November 2012 until paid, with the expectation that I would pay all sums due when my house sold. In addendum #2 we stated that the total would be due when my house sold or by November 2013, whichever occurred first. My house did not sell.

In early November 2013, my ex-spouse, now using an attorney, began approaching me in a formal and legal way. My ex-spouse has not communicated with me directly for almost one year. We last had a somewhat heated discussion May 2013. Her recent "legal move" commenced in early November 2013 surprised me as we had worked out difficulties before, but apparently she has a different agenda in mind now. With no warning to me, no phone call, no email, no letter ..... a motion to show cause was filed with the court in early November 2013, but with no "request for submission" attached, so the court didn't advance that to reviewing it and getting involved at that point. I was told by the court clerk that the judge does not review any submissions without a "request for submission" attached to the filing. I perceived this first move as a threat to me hoping to bring me to the negotiation table to resolve matters. In late November 2013, attorney communicated (by mail) a settlement arrangement (prepped by my ex) that was unacceptable or undoable. At the end of December I sent my ex a memo outlining what I could do (not much) and reiterating that I had no funds to pay her, but that I would pay what was owed when my house sells. I've not received any response from my ex. The only communication I receive is from the attorney.

I believe her recent actions are rooted in some bitterness. In addition to the phone call last May, I got remarried in August 2013. Another interesting comment I picked up was from my youngest daughter who told me in December 2013 that "mom just wants to find out what is going on without talking with you". My daughter is 24 and living in mom's house at this time. It is noteworthy to include that my ex is employed and doing okay financially. She drives a new vehicle, while mine is 8 years old. She can take trips regularly and gives our kids $$$ at times. She can afford to send her dog to "day care" and contemplate a several thousand dollar surgery to prolong it's life for perhaps a couple of years. Just saying, the tide has turned. She can also afford an attorney at $300 per hour, while I cannot.

Now, in March 2014, a court ordered hearing has been set for early April directing me to appear and "show cause" ..... presumably why I should not be held in contempt.

I cannot afford an attorney ($300/hour). I must appear in court when requested (or ask for delay?). Although the attorney's paperwork seems to portray me as a deadbeat, my track record indicates otherwise. At this point, I've not attempted to ask the court for relief on spousal support due to hardship, and it may be too late for that anyway. It looks to me like the addendums changed the nature of what was owed from MSS to a promissory note of sorts, with some minor interest accruing, but the date for that to come to an end was November 2013, and without my house selling, I have no way to pay the outstanding amount.

I would appreciate any constructive comments or suggestions about my situation. Questions are welcome if more info is needed. I can represent myself politely in court, and I am reasonably good at figuring what to do "on the fly". I've dealt a lot in my professional life with attorneys and legal matters, but in this legal arena I'm sure there are aspects that could surprise me, and I need to avoid that.

Thanks for reading and considering the above.

I read your whole post. I believe I've boiled it down to this: You agreed to pay an amount for a certain length of time per court order and have not done so. You have no court orders modifying the original order.

You will need to bring your agreed obligation current and seek a modification to lower future obligations.

GOOD LUCK.

 

[trueheart0923]

I read your whole post. I believe I've boiled it down to this: You agreed to pay an amount for a certain length of time per court order and have not done so. You have no court orders modifying the original order.

You will need to bring your agreed obligation current and seek a modification to lower future obligations.

GOOD LUCK.

Bali hai, Thanks for input.

I've never been "ordered" by the court on anything. When I got my divorce, the marital settlement agreement was filed accordingly, so that became my bible to follow. I suppose that is my "order". I followed the schedule until August 2010 when financial hardship prevented me from continuing. The ex and I did an addendum to the original MSA in 2010, then again a second addendum in 2012. These modified the original understanding in the MSA. The addendums in essence acknowledged that I could not afford to pay, both parties signed and notarized. The time to catch up and pay back sums was established to be upon the sale of my house, which hasn't occurred, thank you real estate market.

I have no future obligations under the MSA. Obligations concluded October 2012, except that what remains owing is the amount I could not pay in spousal support during 2010, 2011, 2012.

I don't really object to re-acknowledging back sums owed, but I might reconsider that IF I can still ask the court for spousal support relief given the current late date and circumstances.

do you have more input?
thx,

 

[Bali Hai]

Bali hai, Thanks for input.

I've never been "ordered" by the court on anything. When I got my divorce, the marital settlement agreement was filed accordingly, so that became my bible to follow. I suppose that is my "order". I followed the schedule until August 2010 when financial hardship prevented me from continuing. The ex and I did an addendum to the original MSA in 2010, then again a second addendum in 2012. These modified the original understanding in the MSA. The addendums in essence acknowledged that I could not afford to pay, both parties signed and notarized. The time to catch up and pay back sums was established to be upon the sale of my house, which hasn't occurred, thank you real estate market.

I have no future obligations under the MSA. Obligations concluded October 2012, except that what remains owing is the amount I could not pay in spousal support during 2010, 2011, 2012.

I don't really object to re-acknowledging back sums owed, but I might reconsider that IF I can still ask the court for spousal support relief given the current late date and circumstances.

do you have more input?
thx,

When the judge granted your divorce, your settlement agreement became a court order. You are bound to those orders as of this date, unless they have been legally modified.

 

[not2cleverRed]

In order for your divorce to have been legal, the MSS and MSA documents had to have been filed with a court somewhere. So, that makes them a legally binding agreement.

It doesn't matter that you have your proposed amendment notarized - it's a judge's seal of approval that you need. Not that it's called a "seal of approval", but really, if it's not on file as a legal document with some court, you're SOL.

What you NEEDED to do was file an amended version with the court. Not looking it up for you.

Bali Hai has been through the ringer where alimony is concerned, so believe him.

 

[trueheart0923]

When the judge granted your divorce, your settlement agreement became a court order. You are bound to those orders as of this date, unless they have been legally modified.

Okay, understood. Does this mean that the addendums carry no weight? That it's as though they don't exist? They depict a point in time when the monthly spousal amount became too heavy .... like $1750 per month too heavy.

What is my opportunity to claim hardship any where along the time line in this? Too late now? Can I get relieved from even a portion of what is back owing?

What do I say in my defense at an upcoming hearing where I'm supposed to show why I should not be held in contempt?

I don't have the funds to finish this. I have paid out well over $1M from 2001 till 2010 ... asset shift, spousal support, kids education and living costs. It tapped me. The economy, job market, RE market combined to substantially change the picture from inception in 2001.

Thanks Bali Hai. I'm listening!

 

[stealth2]

You could use the addenda to show she was in agreement with the reduced amount/change in alomony structure. BUT you stated you would pay her by 11/13, sold house or not. You have apparently reneged on that. So why should a judge not find you in contempt?

 

[Bali Hai]

Okay, understood. Does this mean that the addendums carry no weight? That it's as though they don't exist? They depict a point in time when the monthly spousal amount became too heavy .... like $1750 per month too heavy.

What is my opportunity to claim hardship any where along the time line in this? Too late now? Can I get relieved from even a portion of what is back owing?

What do I say in my defense at an upcoming hearing where I'm supposed to show why I should not be held in contempt?

I don't have the funds to finish this. I have paid out well over $1M from 2001 till 2010 ... asset shift, spousal support, kids education and living costs. It tapped me. The economy, job market, RE market combined to substantially change the picture from inception in 2001.
Thanks Bali Hai. I'm listening!

Was any of the above bolded italic put into your court orders?

 

[trueheart0923]

Was any of the above bolded italic put into your court orders?

As of now, the only "order" that exists is the marital settlement agreement executed May 2001 and on file with the court. I have followed this without incident from inception to August 2010, the cash flow breaking point. During the first 112 months, I shifted assets and paid out to my ex plus on behalf of daughters, well over $1M .... most of this in accordance with the MSA, but a small part of that was generosity beyond the MSA to my daughters. When I had money I was more generous. I could be and wanted to be.

My ex (atty) introduced the addendums with her motion to show cause filed with the court in November 2013. I followed that filing a motion requesting an extension of time to respond until 1/14/14. Neither of these motions was accompanied by a "request for submission" which was communicated to me by the court clerk on 1/14/14 by email. Clerk sent me a "docket copy" and explained to me that neither had been read, nor would they be, short of receiving a formal submission request. They have these forms in their office. At that point I believed my ex was studying my letter to her of 12-28-13 wherein I suggested what I could/couldn't do - would/wouldn't do. I thought I was waiting on an answer from her.

The next communication I received (mid Feb) was blank forms from the atty indicating that a hearing request had been submitted to court. At this point I assumed (oh boy) that this not being accompanied by a RFS meant that it was in limbo. I was apparently wrong, as the court sent me the filled out forms ordering me to appear on 4/4.

I have never taken the position that I would not pay. In fact, the addendums say just the opposite, that I would pay, but that the funds for this would have to come from the sale of my house, which has not yet happened.

My monthly income is lower than my outgo for now and the past several years, and I can show this easily. I rely on a combination of selling personal items, working part time, and loans to get me through to when the house sells and I will become debt free. For now, and since August 2010, monthly hardship exists.

I'm thinking I may just go to court on 4/4 and restate what I've done procedurally, and also restate what my 12/28/13 memo stated about what I can do to deal with the balance OS. I do not think I can adjust my prior addendum promises at this point, and I think the judge would view me poorly if I tried. I will also recount for the judge that for 9+ years I performed without incident.

A final piece to the puzzle is that while the court of jurisdiction is in NV, I'm in CA. My assets, limited as they are, are not easily accessed. They can be through judgement then a filing of a lien, but that is cumbersome and I believe the judge will see that as well. If I offer to secure what I will do when the house sells, that should take care of the problem?

Lastly, I probably have an opportunity to sit down in the attorneys office without going to court as a first attempt to see if we can get this resolved. I do not respect this attorney (scotch taped mail has never impressed me coming from someone who charges $300/hour) but I can stomach her for an hour to avoid court.

Comments on the above? Alternate/additional suggestions?

Thanks.

 

[trueheart0923]

Was any of the above bolded italic put into your court orders?

To specifically answer your question, no, the bold italic is coming from me now. It is my quick general explanation as to what happened to me financially over the last several years. Do these circumstances, or me repeating them to the court, do anything beneficial for me now?

 

[Bali Hai]

As of now, the only "order" that exists is the marital settlement agreement executed May 2001 and on file with the court. I have followed this without incident from inception to August 2010, the cash flow breaking point. During the first 112 months, I shifted assets and paid out to my ex plus on behalf of daughters, well over $1M .... most of this in accordance with the MSA, but a small part of that was generosity beyond the MSA to my daughters. When I had money I was more generous. I could be and wanted to be.

My ex (atty) introduced the addendums with her motion to show cause filed with the court in November 2013. I followed that filing a motion requesting an extension of time to respond until 1/14/14. Neither of these motions was accompanied by a "request for submission" which was communicated to me by the court clerk on 1/14/14 by email. Clerk sent me a "docket copy" and explained to me that neither had been read, nor would they be, short of receiving a formal submission request. They have these forms in their office. At that point I believed my ex was studying my letter to her of 12-28-13 wherein I suggested what I could/couldn't do - would/wouldn't do. I thought I was waiting on an answer from her.

The next communication I received (mid Feb) was blank forms from the atty indicating that a hearing request had been submitted to court. At this point I assumed (oh boy) that this not being accompanied by a RFS meant that it was in limbo. I was apparently wrong, as the court sent me the filled out forms ordering me to appear on 4/4.

I have never taken the position that I would not pay. In fact, the addendums say just the opposite, that I would pay, but that the funds for this would have to come from the sale of my house, which has not yet happened.

My monthly income is lower than my outgo for now and the past several years, and I can show this easily. I rely on a combination of selling personal items, working part time, and loans to get me through to when the house sells and I will become debt free. For now, and since August 2010, monthly hardship exists.

I'm thinking I may just go to court on 4/4 and restate what I've done procedurally, and also restate what my 12/28/13 memo stated about what I can do to deal with the balance OS. I do not think I can adjust my prior addendum promises at this point, and I think the judge would view me poorly if I tried. I will also recount for the judge that for 9+ years I performed without incident.

A final piece to the puzzle is that while the court of jurisdiction is in NV, I'm in CA. My assets, limited as they are, are not easily accessed. They can be through judgement then a filing of a lien, but that is cumbersome and I believe the judge will see that as well. If I offer to secure what I will do when the house sells, that should take care of the problem?

Lastly, I probably have an opportunity to sit down in the attorneys office without going to court as a first attempt to see if we can get this resolved. I do not respect this attorney (scotch taped mail has never impressed me coming from someone who charges $300/hour) but I can stomach her for an hour to avoid court.

Comments on the above? Alternate/additional suggestions?

Thanks.

If you can sit down with the attorney and work things out, that would be great, HOWEVER, you really need an attorney to represent you. I don't believe you are going to come out of this well unless you have legal counsel.

The issue of course is that your ex wants the money that you agreed to pay her by court order and she now is at the point (after working with you and giving you reasonable chances to pay up) where she is going to lower the boom on you. If she convinces the judge to find you in contempt, expect to be ordered to pay her legal fees as well.

Had you taken care of this at the beginning of your financial distress by going through the proper legal channels and gotten a court ordered modification to the spousal support you might be in a much different set of circumstances than you are presently. But since you AGREED to pay her, your chances of getting a modification would be extremely hard to accomplish.

Again, get a lawyer.

 

[trueheart0923]

If you can sit down with the attorney and work things out, that would be great, HOWEVER, you really need an attorney to represent you. I don't believe you are going to come out of this well unless you have legal counsel.

The issue of course is that your ex wants the money that you agreed to pay her by court order and she now is at the point (after working with you and giving you reasonable chances to pay up) where she is going to lower the boom on you. If she convinces the judge to find you in contempt, expect to be ordered to pay her legal fees as well.

Had you taken care of this at the beginning of your financial distress by going through the proper legal channels and gotten a court ordered modification to the spousal support you might be in a much different set of circumstances than you are presently. But since you AGREED to pay her, your chances of getting a modification would be extremely hard to accomplish.

Again, get a lawyer.

Actually, I did consult one this AM. He suggested that if I re-acknowledge the debt (don't dodge it) and offer to secure it, ease of doing that has some value to my ex and would ultimately be viewed by court as acceptable as this would cast me in the best light I can achieve. Yes, the judge can order as he determines appropriate, but I was advised he will view my history favorably and will be forced to realize that if I don't have the money to pay the debt right now, that there is no other better solution than to secure it for when it can be paid. I'll be stating that I can't pay, not that I won't pay.

There is one method for me to pay the debt, through house sale, and house is listed. The judge can't squeeze blood from a turnip, and he will not be inclined to do so if I'm doing all I can to address debt and since he will see merit in not chasing property in another state. Nothing is for sure of course, but this is the advice I got from a divorce attorney who has come before this judge.

I am looking to postpone the hearing and attempting to work out details with opposing atty. We'll see how that goes .... it's the next step I'm taking TODAY.

I very much appreciate your input, and welcome more as you see fit. This ain't over till it's over. Thanks Bali Hai!

 

[Bali Hai]

Actually, I did consult one this AM. He suggested that if I re-acknowledge the debt (don't dodge it) and offer to secure it, ease of doing that has some value to my ex and would ultimately be viewed by court as acceptable as this would cast me in the best light I can achieve. Yes, the judge can order as he determines appropriate, but I was advised he will view my history favorably and will be forced to realize that if I don't have the money to pay the debt right now, that there is no other better solution than to secure it for when it can be paid. I'll be stating that I can't pay, not that I won't pay.

There is one method for me to pay the debt, through house sale, and house is listed. The judge can't squeeze blood from a turnip, and he will not be inclined to do so if I'm doing all I can to address debt and since he will see merit in not chasing property in another state. Nothing is for sure of course, but this is the advice I got from a divorce attorney who has come before this judge.

I am looking to postpone the hearing and attempting to work out details with opposing atty. We'll see how that goes .... it's the next step I'm taking TODAY.

I very much appreciate your input, and welcome more as you see fit. This ain't over till it's over. Thanks Bali Hai!

You're welcome and the best of luck to you.

 

[LdiJ]

Actually, I did consult one this AM. He suggested that if I re-acknowledge the debt (don't dodge it) and offer to secure it, ease of doing that has some value to my ex and would ultimately be viewed by court as acceptable as this would cast me in the best light I can achieve. Yes, the judge can order as he determines appropriate, but I was advised he will view my history favorably and will be forced to realize that if I don't have the money to pay the debt right now, that there is no other better solution than to secure it for when it can be paid. I'll be stating that I can't pay, not that I won't pay.

There is one method for me to pay the debt, through house sale, and house is listed. The judge can't squeeze blood from a turnip, and he will not be inclined to do so if I'm doing all I can to address debt and since he will see merit in not chasing property in another state. Nothing is for sure of course, but this is the advice I got from a divorce attorney who has come before this judge.

I am looking to postpone the hearing and attempting to work out details with opposing atty. We'll see how that goes .... it's the next step I'm taking TODAY.

I very much appreciate your input, and welcome more as you see fit. This ain't over till it's over. Thanks Bali Hai!

I see one potential problem in this whole thing that has not been addressed yet. It appears that your house has been on the market since mid 2010. That is 3 1/2 years. What explanation are you going to give to the judge that will justify the house not selling in 3 1/2 years? Unfortunately it could look to the judge like you have deliberately priced the house NOT to sell.

 

[Bali Hai]

I see one potential problem in this whole thing that has not been addressed yet. It appears that your house has been on the market since mid 2010. That is 3 1/2 years. What explanation are you going to give to the judge that will justify the house not selling in 3 1/2 years? Unfortunately it could look to the judge like you have deliberately priced the house NOT to sell.

If that were the case, I believe it should be the burden of the ex (who I perceive has no conception about money or what it takes to earn it) to submit evidence and prove that to the judge. Not the judge's gut feeling.