Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)
314.727.4880

Divorce Judgments Should Be “Revived” Every 10 Years To Preserve Right To Past-Due Support

Let’s turn to reader emails for this week’s column.

Mike and Diane wrote about their sister-in-law who had the misfortune to marry and then divorce a deadbeat dad. According to their email, “They got a divorce and he did not pay very much child support and then just quit. This ex-husband has not been paying child support for 15 or 16 years.”

They ask: “Could we go back to when he stopped paying and get back child support from him?”

Yes, she can go back to court and attempt to collect all of the support owed to her, but with one very important “if”…if she had her divorce judgment “revived” once it was 10 years old.

Reviving a judgment is a little-known facet of family law that insures a recipient’s right to collect any and all past due support payments, whether child support or spousal maintenance, no matter how old they are. It is done simply by filing a motion with the court.

If a judgment has not been revived, then any amounts left unpaid for more than 10 years are no longer collectible through court enforcement, while past due payments 10 years old or less are still subject to the court’s jurisdiction. But, taking a deadbeat back to court is just the first step. Actually shaking some money out of his pocket is a whole ‘nother challenge and the subject for a separate column.

Patty wrote about her son who has survived some very difficult times. According to her email, her son is the divorced father of one child, for whom he pays $511 in monthly support. Mom says that her son has been laid off at various times and unable to stay current, landing in jail 5 times for criminal non-support.

In addition, when employed, his earnings are pretty meager…presently he earns just $10 an hour…and is unable to afford insurance so he has no car and has, at times, also gone without home, heat or food.

Compounding his troubles, his ex-wife has been withholding his son, not making him available for the every other weekend visits specified in the divorce decree. This has gone on for three years.

Mom writes: “There appears to be no free help out there for him, yet when he falls behind, all the state has to do is issue a warrant”.

Patty, there is low cost assistance for your son, but it will require quite a bit of tenacity on his part to see it through. It is called a “Family Access Motion” and it is a fill-in-blanks form that your son can acquire from the court where the divorce was issued, which you wrote is about 3 hours away. He files it with that same court and will then have to return for a hearing.

However, before doing this, your son should reinitiate seeking visits with his child. He should begin by writing his “ex”, by regular mail and by certified mail with a return receipt, that he will be by to pick up his child on the weekends designated in the court order. When he goes, he should ask a police officer to accompany him, both to keep the peace and to be a witness if the “ex” refuses to release the son. Should this occur, he should try again on his next two weekends, each time with an officer in tow.

If the former spouse persists in withholding the child, your son should file the Family Access Motion. He should subpoena the officers as witnesses to testify at the hearing. Presumably, the court will find in his favor and issue a new visitation schedule, including additional time with his son as compensation for the time deprived in the past.

Given his former mate’s stubbornness, he should expect that she will ignore this new order just as she had the prior one. As such, he should ask the police to accompany him once more when he goes to pick up his child under the new order.

Should she continue to refuse, hopefully the police will have seen enough and file a felony criminal complaint against her for refusing to comply with a lawful court order. If the police resist doing this, he should take his problem up the line, to the police chief or the prosecuting attorney’s office if necessary.

Being arrested for a felony with the threat of time in the state penitentiary is usually enough to bring the most recalcitrant parent in line. But, if the wife still won’t comply, then the state will take over your son’s cause on its own nickel and prosecute her. And, while all this is unfolding, your son should continue to seek his boy at each ordered visitation because each separate refusal can result in a new felony charge.