Looong story short: My mom (78 yo) and dad (87 yo) divorced 20some years ago and he agreed to pay her 1/2 his retirement each month; we have no alimony provision in Indiana. He has gotten himself in financial trouble and this month the check bounced. Next month looks like more of the same.
She spoke to the prosecutor who told her she basically has no recourse other than to get someone appointed to handle his money. He says that my dad is not in contempt of court and she can’t file charges on the bad check as it wasn’t written to cover goods or services.
Her bank told her she can only get his payment garnished with his permission.
SO. I am not sure I buy all of this. My take:
They have a divorce decree stating that he will pay her $1700/month. If he fails to do so, is he not in contempt?
If someone writes a bad check for $1700, there is no legal recourse? Seriously? Prosecutor didn’t even advise her to go to small claims–I don’t know if that’s the answer or not, but I can’t believe there is NOTHING to be done.
I know there are voluntary garnishments; I also know there are involuntary garnishments, which could be set in place without his permission.
I think I have more questions but I’m too fired up to think clearly right now. Maybe someone with legal experience will have some ideas. So far I am planning to call Adult Protective Services tomorrow to see what can be done to protect him as he is obviously being exploited by a new “friend” of his. He is on the verge of becoming homeless due to complete lack of control over his money. My SIL is going to talk to him also to see if he will voluntarily allow her to handle his money, but I don’t hold out a lot of hope for that. If we want to do that, I think we would have to have him declared incompetent.
My dad doesn’t talk to me to so I can’t just go do a gentle intervention–I can only operate on my mom’s behalf. Please understand I don’t give the first shit about his new friend or how much money he spends on her, as long as he covers his obligations and living expenses first. I would hate to see him living in a tent and I truly believe he is no more than a month or two away from that.
And of course my mom can’t afford legal counsel. I’ll be looking tomorrow to see what kind of legal aid is available in her area.
/venting
Thank you.
If he has agreed in writing to provide X dollars a month then I don’t see why your mom can’t go to court and have that contract enforced, whatever that takes. If he doesn’t have the money that’s one thing, if he has the money and is just refusing to pay the court can force him to pay by threatening to throw him in jail. I doubt they would ever put him in jail, but the threat of jail is always there.
Your dad may decide that it’s cheaper to pay your mom than hire a lawyer to defend himself. Go to legal aid and figure out whether this is eligible for small claims court or not. You don’t need a lawyer for small claims court, but she better have the agreement in writing with his signature at the bottom of the page…
Spousal support 20 years after the divorce isn’t normal practice. Even your mom took him to court, he might be able to argue that it should be overturned as such lengthy periods of spousal support isn’t reasonable.
I know very little about family law, and less about family law in Indiana.
I am surprised that spousal support would be considered to run for twenty years, but that surprise may mean I don’t know jack about family law. Contact an attorney licensed in Indiana.
Eva Luna, I will check that site out and see if I can find her affordable counsel. I started warning her a couple of months ago to work on getting an attachment so she is paid automatically but I think she’s been in denial…until now. His retirement is from his military service and unfortunately his bank is in Texas. At this point he appears to have no idea where his money has gone or how much he has, if any.
I really do think he’s incompetent. He’s been writing checks for $100 on a daily basis at a local store (or two) and those checks are bouncing as well. He’s bounced checks at a local restuarant. He’s tried to borrow thousands from family members and been turned down. His new friends have stolen two trucks, his guns, tools, fishing equipment, and anything else not nailed down at his house. He buys an average of at least 1 phone a month to replace the stolen ones. I don’t know how long he will be allowed to live in Senior Citizens it things don’t get under control. I don’t like him but I hate to see him end up homeless.
I don’t understand spousal support at all, but I believe the thinking behind his agreeing to pay it for the rest of his life was that my mom was never able to establish a solid work history or retirement fund; he was active military for 23 years and she spent those years living all over the world with him. At any rate, the divorce decree allows for her to be given half of his military retirement as well as some portion of his social security.
He isn’t arguing that he doesn’t owe it, he just doesn’t have the money to cover his checks. And I can’t imagine that there are no steps for my mom to take to hold him accountable for it.
If Mom was a 50±year-old lacking a job history and skills when the divorce occurred 20 years ago, could it not have been determined that she was unable to enter the workforce and earn money of her own? I’m not a lawyer, but this sounds reasonable. Maybe there was a stipulation that if she found work or remarried, the payments would stop. But if she’s done neither, she’s still owed the money. She may not be able to collect social security if she never worked, so ex-dad may be her only substantial source of income.
Yes, exactly. I believe they both agreed that was the case, and that the support was reasonable. He has never argued that, even though I realize it’s not standard.
I’m about 98% sure the military must have procedures in place for dealing with exactly this situation. Same for Social Security.
My mom got Railroad Retirement (which predates the Social Security system) based on my dad’s earnings, because they were married for more than 10 years, they divorced, and she never remarried. (She did have her own earnings record, but because he always earned so much more than she did, her benefits were higher if she took whatever she was entitled to through his earnings record.) It doesn’t go through my dad at all and has nothing to do with his divorce decree.
If I were your mom, and provided you can’t get answers quickly and cheaply from a lawyer licensed in Indiana, I’d start by going to the local Social Security Office and contacting the appropriate branch of the military to get information about what your mom’s rights are.
To be blunt, you’re asking for very different things, so you ought to consider your priority. If you want someone to help your father, you basically need family intervention. It may not have to be you, but that’s your play. If you just want to take his last dime, then you may or may not be able to force the matter, but you’d have to talk to a lawyer.
In New York, payments from a retirement plan are not considered spousal support. Instead, a retirement plan is considered marital property that has to be divided upon a divorce. The nonparticipant spouse could be entitled up to half of the marital portion of the retirement plan depending on how long the marriage was.
If Indiana divides retirement plans like NY does, OP’s mom could be entitled to her portion of her husband’s military plan until the plan runs out.
If he’s paying from his plan pursuant to a court order, then I would ask the court to hold him in contempt for violating it. A judge could order the retirement plan to make payments directly to OP’s mom. This is all based on my knowledge of NY law, so I would strongly suggest checking with a matrimonial attorney in Indiana.
I’m not interested in his money except as it pertains to two things: his agreed-upon payments to my mom and his ability to stay in his home and not become homeless.
Yes, though, I do have more than one issue to be concerned about…the financial bind my mom is being placed in, and the exploitation that is causing him to put her in that position. It’s a mess and there are going to have to be several plans put into place, I think.
My brother and SIL are going to try to persuade him to allow her to handle his finances today. I’m crossing my fingers but not holding my breath.
Yes, retirement benefits aren’t spousal support. Heck, my brother’s divorce was final yesterday, and his military retirement is officially just a few days away. His (thank God, finally!) ex wife is entitled to a percentage of his retirement pay until she remarries. If she never remarries, she’ll get that portion until she dies, basically.
Enforcement, however, will depend on the court order. And it sounds like Dad needs a guardian to protect him from himself and enable him to remain fiscally able to keep a roof over his head. But that’s a separate court action…
Contact an attorney licensed in Indiana.