22 Feb Can I go after my ex’s IRA to get back alimony payments?

Q. Is IRA money protected from alimony paid the through the state Probation Department?
— Divorced

A. A lot will depend on the court and on your particular situation.

If someone is behind on alimony, the spouse who is supposed to receive the payments will need to take action to get relief.

It is within a court’s discretion and authority to liquidate a payor spouse’s IRA for the payment of alimony arrears, said Jeralyn Lawrence, a family law attorney with Lawrence Law in Watchung.

That means IRA money is not protected from being used by the Probation Department to pay alimony, Lawrence said.

But that’s not what usually happens, she said.

“In lieu of garnishing the IRA through the appropriate probation department, it is more common for a court to first enter a judgment against the defaulting party and subsequently compel the dissipation of the IRA by way of court order,” Lawrence said.

She said in cases involving numerous violations of orders or agreements, the court may decide to liquidate a portion of the IRA to be held in trust and used to satisfy future alimony payments.

“Though this is an option available to the court, liquidating a defaulting party’s IRA for this purpose is often considered an extraordinary form of relief and is generally employed as a last resort,” she said.

Someone looking for reimbursement of alimony arrears by liquidating the defaulting party’s IRA must first file an application with the court seeking this specific form of relief, she said. After the application is submitted, the court may choose one or more sanctions to obtain the defaulting party’s compliance with his or her outstanding alimony obligation, she said.

There are several other ways a court may try to get the defaulting party to pay, including entering judgment against the defaulting party, upon which interest may accrue, Lawrence said. Or it may provide the defaulting party with a period of time to pay the outstanding amount or even suspend the defaulting party’s driver’s license. It could also impose financial sanctions on the defaulting party or require the defaulting party to participate in a court-approved community service program, she said.

The defaulting party could even be incarcerated or the court may issue a warrant for the arrest of the defaulting party, she said.

“It remains within the discretion of the court to effectuate an appropriate remedy, which will ultimately be determined based on the unique and individual facts of any given case,” Lawrence said.

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This story was originally published Feb. 22, 2021.

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