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Every month, my ex-husband is late
with his child-support, or the check bounces, or he gives me half the amount saying he'll
give me the rest later. I'm considering withholding visitation from him until he smartens
up. Do you have any suggestions?
This problem typically occurs at a time when
communication between the parties is either about to break down or has already collapsed.
The lack of communication can lead the parties to misinterpret each other's motives or
actions, resulting in an escalating spiral of retaliatory behavior, which in turn will
only generate litigation.
The couple needs to sit down with a mediator, who can
help them focus on what they and their children need in order to get on with their lives.
True financial problems, resulting from supporting two households, may be contributing to
this dispute. Or it may be that the parties are trying to push each other's buttons.
In my role as either attorney or mediator, I would
recommend, for a variety of reasons, that this woman not withhold visitation. First and
foremost, it would be contrary to the children's best interests. Children need the
stability of ongoing, predictable contact with both parents, especially at this stage when
their lives are in a state of flux. It's crucial that they not be exposed to open
hostility between their parents or used as pawns.
Secondly, it's not in this woman's own interest to
withhold visitation. Certainly in New Jersey (and, I suspect, in most other
jurisdictions), a court will not look kindly on a parent who, especially for financial
reasons, violated a pendente lite (a temporary, pending the litigation) order, agreement,
or status quo concerning visitation. If she violates a visitation order, she may be guilty
of interfering with custody, an act that can carry substantial criminal penalties.
Further, escalation is a dangerous game, not only due to the uncertain judicial response,
but also to the unpredictable spousal reaction. The spouse may "counter punch"
by seeking custody or assuming an intractable position on other issues important to her.
And the more litigation escalates, the less money there will be for the parties and their
children after the divorce is over and the attorneys are paid.
I would advise this woman to deal with her husband in a
very straightforward manner by approaching him directly to rectify the problem. If he
won't go to a mediator, she would be better off taking him to court to enforce his support
obligation than interfering with his visitation. A wage garnishment, in which a court
order requires the husband's employer to deduct the child support from his paycheck, may
be available to enforce the support obligation. In New Jersey and many other
jurisdictions, the court no longer considers garnishment a punishment for a delinquent
obligor, but rather a standard means of collecting child support -- unless the parties
agree otherwise.
However, this woman shouldn't take a decision to seek a
court order lightly. It could bring retaliation. Every added step of divorce litigation
diminishes the parties' ability to control the course and cost of the litigation, as well
as the terms of the final settlement. It could also further poison their ability to
communicate.
In the long run, it will be in both of their interests,
as well as in the children's, to keep the lines of communication open. This will allow
them to cooperate as parents after the divorce is over. Without a father to care for the
children on a regular basis, the job of being a single mom is much more difficult. On the
flip side, it's detrimental to the husband if a custodial mom interferes with his
visitation.
If I were his attorney, or if I could confer with him as
his mediator, I would suggest him that it is not in his self-interest to use non-payment
of child support as leverage. Not only does his wife have remedies through litigation, but
in New Jersey and some other states, he might be compelled to pay her attorney's fees (as
well as his own) for enforcing his obligation. Further, the more polarized they become,
the more she will oppose whatever he seeks out of the divorce settlement, even terms she
might otherwise agree to, in retaliation and for whatever leverage it gives her.
Nonpayment of his support obligation may lead to the judge developing a negative opinion
of him.
The husband might want to consider establishing a
voluntary wage garnishment for child support to remove this as a source of contention. I
would also encourage him to recognize that his failure to fulfill his child support
obligations -- which might be subject to modification -- is not the way to express his
dissatisfaction with the arrangements.
In summary, this couple is at a dangerous crossroads:
mediation or litigation. The direction they choose will have an impact on their lives and
their children's lives for many years to come. A decision to seek out a mediator can help
them sort out what is going on; focus on their needs, rather than their angry feelings;
seek mutually advantageous remedies; maintain control over the professional fees incurred
in the divorce and over the terms of the final settlement; and keep the lines of
communication open, ameliorating a difficult situation. Unfortunately, the alternative of
litigation, with its awful logic of escalation, is a choice which can carry long term
costs, financial and otherwise, for the divorcing couple and their children. |
