Q. I have two judgments against my ex-husband for back child support. He lives out of the country but gets a pension from an American company. Can the pension be garnished for the judgements and how do I get it enforced?
A. Yes, pension benefits may be garnished for securing the payment of child support, but you have some work ahead of you.
The case law is very clear.
Time and time again the courts in New Jersey have specifically found that pension benefits may be garnished to secure the payment of child support, said Kenneth White, a certified matrimonial attorney with Shane and White in Edison.
He referred to Ward v. Ward, Biles v. Biles and Slayton v. Slayton as examples.
White said having confirmed an ability to garnish pension benefits, you should know that in reality, many family court judges are hesitant to order the garnishment of retirement benefits on an initial application.
“There is no justification for this or legal authority for this,” he said. “Despite no justification or legal authority, multiple former judicial law clerks have shared with me their experience of having worked for judges who hesitated, if not initially denied a request to garnish retirement benefits.”
White said if he was to speculate, he would suggest that many judges are initially biased against such garnishments as pension benefits are typically protected under bankruptcy and other laws.
Regardless, White said, the bottom line is that you can garnish pension benefits to secure the payment of outstanding child support.
The next hurdle to overcome is dealing with the pension’s plan administrator.
For example, White said, you may secure an order from the family court directing the plan administrator to forward your ex’s pension benefits to the probation department or to you to satisfy your ex’s past due child support.
“A rare plan administrator may comply with that single order, no questions asked and without additional hurdles to overcome,” White said.
The plan administrator may require additional work before complying.
For example, White said, when pension benefits are distributed between spouses by way of equitable distribution – each party receiving his/her fair share of the parties’ combined marital assets as part of finalizing a divorce – a plan administrator requires the receipt of a “filed” and “sealed” Qualified Domestic Relations Order (QDRO) in addition to a final judgment of divorce before distributing any part of the pension benefits to the non-pension-participant.
Accordingly, you may be required to go through a two step-process, White said.
First, you will secure an order granting you a judgment for a specific sum due for back child support. Second, you will need to secure a QDRO specifically authorizing the pension’s plan administrator to release funds from the pension directly to the probation department or to you, White said.
You may want to reach out the plan administrator in advance to ask what requirements the plan may have.
In the event you have not appeared in court on a regular basis, White said, you may be very well served by seeking the assistance of an experienced family law attorney in your area.
Email your questions to moc.p1540305167leHye1540305167noMJN1540305167@ksA1540305167.