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Fear and Loathing in Divorce Court.

fear and loathing

At times divorce triggers an explosion of events forming a cloud of dark and powerful emotions.  Yesterday it was announced that actor Johnny Depp is experiencing the Fear and Loathing of divorce, refusing to follow the terms of his divorce settlement after becoming incensed by his former wife’s slanderous comments.  More specifically, based on his former wife’s statements, Depp is refusing to pay the agreed upon amount of 6.8 million, which allegedly violates the terms of his divorce agreement that the couple entered months ago to dissolve their marriage.

Although the figures involved with Depp’s divorce agreement are quite unique, in New Mexico it is common for one party to enter into an agreement, and then for any reason or for no reason at all, subsequently refuse to follow the express terms of that agreement.

In New Mexico, a divorce is finalized when both parties reach an agreement surrounding marital assets and debts with a Marital Settlement Agreement (“MSA”).  This MSA includes agreements on distributing community debts, property, spousal support, and any other agreements involving the parties’ property, liabilities, and rights.

A divorce cannot be finalized until both sides either agree on the terms of the requisite MSA, or place the unresolved issues into the judge’s hands for her decision on the proper distribution of property, liabilities, and rights such as spousal support.

In either scenario – either amicably deciding the issues or moving forward for a trial on the merits – a MSA or Court Order is eventually signed and then filed, thereby putting the parties on notice of the terms of their divorce. At that point a Final Decree of Dissolution of Marriage can be signed and filed, officially ending the marriage.

Days, weeks, months, or years might pass from the date that the MSA and Final Decree are entered.  At some point along the line, one or both of the parties might refuse to follow the terms of the MSA.

Here are the Top Ten scenarios that I’ve encountered where one of the parties to a divorce fails to follow the terms of the MSA:

[10] Refusing to remove the other party’s name from an account, or failing to close an account;

 [9]  Filing bankruptcy and refusing to cover one’s share of the assumed debt;

 [8]  Failing to make timely equalization payments, or to pay court awarded attorney fees;

 [7]  Not refinancing the martial home, or vehicles, thereby removing the other person’s name from the underlying note and debt;

 [6]  Stalling the sale of the marital residence by either refusing to execute the necessary documents, or by dragging one’s feet – in all manner of ways – delaying the home’s sale;

 [5]  Not paying spousal support;

 [4]  Refusing to return property as outlined in the MSA;

 [3]  Refusing to pay one’s portion of community debt;

 [2]  Not following the MSA regarding Taxes. This is a broad violation that encompasses acts such as: (a) Failing to equitably divide returns, or split liabilities, (b) Not following the agreement involving claiming children as tax dependents, (c) Otherwise not filing taxes as outlined in the MSA; and 

 [1]  Failing to divide retirement accounts through the requisite Qualified Domestic Relations Order (“QDRO”).

The ten scenarios outlined above are the most common examples that I’ve encountered where one party violates the MSA.

In any situation where one party refuses to follow the terms of the MSA, the non-breaching party generally takes a series of necessary steps before knocking on the Court’s door.

The first step involves one party sending a written letter or communication to the breaching party, putting them on notice of the violation, and requesting the party to either cure the violation within a specific period of time or face the ominous future of litigation.  If this amicable approach fails, then the non-breaching party generally addresses the violation by either filing a Motion to Enforce, or a Motion for Order to Show Cause.  Both Motions essentially place the court on notice of the breaching party’s refusal to follow the court order, and outlines the steps that have been taken to remedy the breach in good faith.  A “Motion for Order to Show Cause” requests the court to hold the breaching party in contempt of court, and therefore packs more of a punch than the Motion to Enforce, which simply requests the court to enforce the MSA’s terms.