Question:
I must pay my ex-wife a portion of any bonuses received that are above my annual salary. I must also provide her with my tax filings.
Last year, there was an underpayment after my deductions were calculated so I paid her the difference in the amount owed. This year, there was an overpayment but she is refusing to reimburse the amount saying she is not required to repay, according to the divorce decree.
Can I take her to court to be reimbursed for the overpayment?
Answer:
I am unable to give you legal advice on divorce. I can give general divorce help for men, though, my knowledge is based on Nebraska and Iowa divorce laws where I am licensed to practice.
Without specifically looking at the decree, it would appear you have three options based on your set of facts.
First, when a court order exists, the parties must follow the order or risk a possible contempt or Show Cause Action. This would logically present the first option in how to deal with the current set of circumstances.
A party who has not followed the order and apparently refuses to follow the same will be asked to appear in front of the judge, and explain, or “show cause,” why they should not be held in contempt of court for their failure to follow the court order.
In order to be held in contempt in my jurisdiction, it is the burden of the party who has been aggrieved, to show that such failure to follow the order was both “willful” and “contumacious.” Should the court find the party who failed to follow the order is in contempt, they will be punished.
This option would apply to you not paying the second year full amount due to an overpayment in the prior year. One can argue that an overpayment is a “gift” and one could also argue that it be credited against the next year. Therefore, if you short the amount for the year following, your defense might be that you paid it prior.
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As to the contempt proceeding, in every jurisdiction I practice in, the “punishment” is different and is somewhat based on the individual judge’s preferences.
It can result in taking away parenting time for a specified period of time, fines, a date to come to into compliance, attorney’s fees, and in rare occasions, jail time. Jail time is incredibly rare based on my experience in my jurisdictions.
A judge typically has discretion to determine what the best option is when a party is in contempt, and it typically depends on how long the contempt has been going on and how egregious he finds the actual acts. This also depends if a judge actually finds you in contempt.
Although some individuals prefer the contempt/show cause route, another option, and it may be more appropriate for part of your case, is a modification of your current decree to address underpayments and overpayments and ask that it apply retroactively. This modification would present you with a second option.
Although logic would serve that the overpayment be deducted against the next year, it sounds as though she has absolutely no intention of doing anything that is not specifically outlined. Therefore, to accommodate the request, no matter how mundane, it may serve you well to just modify the amount.
Finally, your third option is to file with the court an application that would have them clarify the parties’ obligations and duties as it relates to the current situation. This would not necessarily be a modification; just a request for the court to interpret the order.
Remember, I am unable to provide you with anything more than divorce tips for men, so please consult with a divorce lawyer in your jurisdiction.
To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, including Omaha, Nebraska Divorce Lawyer Jamie Kinkaid, contact Cordell & Cordell.
