What if Someone Is Not Releasing Property Per a Divorce Decree?
By Anna Assad
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A divorce decree documents the terms of a divorce. You can take legal action if your spouse or another person is not releasing property awarded to you in your divorce decree. The type of legal action you take, however, depends on state law and what type of property is being withheld.
Replevin is a legal action that allows a person to seek the return of property prior to a trial. As such, a spouse who is owed items of personal property may file a court action to enforce the decree; however, she cannot claim real estate this way. When a replevin is filed, both the filing spouse and person holding the property attend a hearing in front of the judge; the person holding the property has the right to offer a defense. If the court rules in the filing spouse's favor, the local sheriff or marshal's office will retrieve the item.
Contempt of Court
Since the divorce decree is a court order, not following the decree is contempt of court. A spouse who can't get property she was awarded in the decree may file an action against the other spouse for contempt of court. Contempt may be a civil or criminal action, depending on state law. As such, the spouse disregarding the decree may face fines or imprisonment because of his failure to comply with a court order.
If a spouse won't turn over real estate — for example, if he refuses to sign the deed that puts the real estate solely in the other spouse's name — the remedy depends on state law. The spouse entitled to the real estate under the decree may file an action in court to enforce the decree. The judge can find the other spouse in contempt of court if he refuses to sign the real estate transfer papers. In some states, if the divorce decree has the legal description for the property -- the property's measurements in words -- the spouse can file an official, court-stamped copy of the divorce decree at the County Recorder's office. The decree acts as a deed. A spouse may also ask the court to appoint a receiver for her ex-spouse's interest in the property. The receiver, a court officer, can sign the deed for the spouse. Some states give a specific court officer, such as a court commissioner, the ability to sign transfer papers for a non-compliant spouse.
If a spouse is trying to enforce a divorce decree that was entered in another state, she must file the decree in the state where she presently lives before applying for enforcement. The remedies for a spouse who was awarded money under the decree depend on the money source and state law. A spouse who has a money judgment per the divorce decree may be able to have her ex-spouse's wages garnished or bank account seized. If she gets a lien against her ex-spouse's property — a form of legal interest in another person's property — because of a debt owed to her under the decree, she may be able to have the local sheriff or marshal's office seize the property. The property is then sold and she receives the money she's owed from the proceeds.
Anna Assad began writing professionally in 1999 and has published several legal articles for various websites. She has an extensive real estate and criminal legal background. She also tutored in English for nearly eight years, attended Buffalo State College for paralegal studies and accounting, and minored in English literature, receiving a Bachelor of Arts.