By Jean Ramatowaski, Partner, Ramatowaski & Schwartz 

There can be a significant injustice to a party seeking to enforce a support or property right against their former spouse.  The cost.

Attorney’s fees may be awarded to help make the supported party whole.  Attorney’s fees are granted based upon good faith versus bad faith standard amongst other criteria.  A court order enforcing a previously ordered obligation, without addressing the cost resulting from the application to obtain the order, can only leave the moving party further in debt.  This could make it cost-prohibitive to even seek to enforce a support or property right.

Attorney’s fees that are awarded in the establishment or enforcement of support obligations are enforceable through enhanced wage garnishments; up to 55% of the supported spouse’s disposable income.  If retirement assets exist, an award of attorney’s fees can be collected along with support arrears from the payor’s share of these assets by way of a Qualified Domestic Relations Order. 

The Appellate Division recently acknowledged the collection of attorney’s fee awards as an exception to the anti-alienation provisions of ERISA.   “The anti-alienation provision reflects a policy ‘to safeguard a stream of income for pensioners (and their dependents, who may be and who usually are blameless) even if that decision prevents others from securing relief for wrongs done them.’”  Orlowski v. Orlowski, 459 N.J. Super. 95, 104 (App. Div. 2019) citing  Guidry v. Sheet Metal Worker’s National Pension Fund, 493 U.S. 365, 376 (1990). “When a marital decree qualifies as a QDRO, the anti-alienation provision does not apply.” Orlowski, at 105.

To qualify as a Qualified Domestic Relations Order under ERISA, the required payment must be allowed under the terms of the retirement benefits plan, must be made to a dependent, not their attorney, and must be related to the payment of support or equitable distribution.

A failure to grant this relief addressing collection when available would cause a reduction in the relief otherwise granted to the moving party by the number of the attorney’s fees it cost to obtain the court order.

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For more information, you can contact Jean Ramatowski at 732.613.8300.