How Do You Get Equitable Distribution Enforced in a Final Decree of Divorce?
By Angie Gambone
Updated April 01, 2020
During a divorce, the term "equitable distribution" refers to the division of assets and debts acquired by one or both parties during the marriage. A divorce decree or judgment will state in writing the terms of the equitable distribution and both spouses will be bound by those terms. In some circumstances, your ex-spouse may not comply with the equitable distribution terms in your divorce decree. If that occurs, you must go back to court to get a judge to remedy the situation.
Community Property Vs. Equitable Distribution
Most, but not all, states use equitable distribution. Nine states, mostly located in the Southwest, are community property states. Under community property law, any asset or debt acquired by either party during a marriage is considered to be the asset or debt of both parties. When couples divorce in community property states, all of those assets and debts acquired during the marriage get divided equally.
The other 41 states use equitable distribution law. In general, this law also considers an asset or debt to belong to both spouses if acquired during the marriage. However, division and apportionment of an asset or debt depends on a series of factors, such as the length of the marriage, each spouse's income or earning power and the standard of living established during the marriage. The division of an asset or debt in an equitable distribution state can be 50/50 or the parties can receive an unequal distribution.
Whether you live in a community property or equitable distribution state, the process for enforcing the property divisions of your divorce decree is the same. If your ex-spouse does not do what he is supposed to, you have the right to file a post-judgment enforcement motion in the court that entered the divorce decree. You can go to your local courthouse for assistance in filing the paperwork or buy the appropriate forms from an online legal document provider. In your motion, you would explain what things your ex was supposed to do but did not do. You would include a copy of your divorce decree and any proof of noncompliance that you may have. You must provide your ex-spouse with a copy of the paperwork and the court will let you know when to come back for a hearing.
Restraints on Modification
When you file a post-judgment motion, the judge will attempt to enforce the terms of your divorce decree. Generally, a judge does not have the authority to modify the terms of property division in your divorce decree. Therefore, if you are simply unhappy with the agreement you made, you cannot ask the judge to change anything. The judge will only be able to order your ex-spouse to comply with the terms of your divorce decree as written. Of course, this does not apply if compliance is impossible. For example, if your ex-spouse was supposed to give you a car but sold it, he may be required to reimburse you for the value of the car instead.
Statute of Limitations
If your ex-spouse does not pay alimony or child support like he is supposed to, you can always bring him back to court. However, this is not always possible with the property division terms of your divorce. In fact, some states have set a statute of limitations on enforcing the property division terms of a divorce decree. For example, in Texas, you typically must file an enforcement action within two years of when the divorce decree was entered. If you wait longer, you may lose your right to enforce the property division terms of your decree. This is similar to a concept called laches. Laches is a defense that a noncomplying party can raise if he is being brought back to court for an enforcement issue long after he stopped complying. Under laches, the noncomplying party will say that his ex-spouse "sat on her rights" for too long without trying to enforce them and hence she has lost those rights. For this reason, it is particularly important that you file an enforcement motion immediately if your ex-spouse does not comply with the property division terms of your divorce decree.
In most enforcement motions, a judge will simply order your ex-spouse to follow the terms of the divorce decree. If your ex-spouse still refuses to comply and you must come back to court again, the judge can order additional remedies. For example, your ex-spouse can be fined and forced to pay additional money to you or the court. This is called sanctions. The judge may also garnish a portion of your ex-spouse's paychecks if money is owed to you for the payment of debts. Also, if real estate was supposed to be provided to you, the judge can force the sale of the property or place a lien on the property that would prevent your ex-spouse from receiving the proceeds if he sells the property without your knowledge. Finally, in extreme circumstances, a judge can hold a noncompliant party in contempt and even arrest him if he willfully refuses to comply with the court's order.
Angie Gambone is an attorney who has been writing for various websites since 2009. She covers a variety of topics, focusing on legal issues, family law and LGBT rights. Gambone holds a bachelor's degree in social work from Rutgers University and a law degree from Rutgers School of Law, where she graduated with honors in 2010.