"Where there is a wrong, there must be a remedy."
How does the Family Court, a court of equity, NOT have the power to do right by this lady? There is a risk that she will be foreclosed upon.
If ex husband has an asset, the Family Court should order its invasion.
How about ordering that the IRA be QDRO'd in your client's favor every time there is an arrearage, subject to liquidation?
Here is some helpful language from NJ attorney Ronald B. Rosen, found on the web:
"In Mallory v. Mallory , 179 N.J. Super 556 (Ch. Div. 1981), the Court had occasion to determine whether the corpus of an IRA pension fund could be reached to enforce a support obligation. The Court noted that no reported cases in any jurisdiction precisely addressed this issue. The Court drew the distinction from earlier case law that had held that pension fund benefits , not corpus, could be levied upon. Here, the obligor was the beneficiary of an IRA (Individual Retirement Account) created pursuant to the Federal tax laws and part of ERISA. The Court used an analysis similar to the analysis used in the earlier cases dealing with pension benefits in coming to the conclusion that the corpus of an IRA may be attached to enforce a support obligation.
The Court opined that the negative tax implications arising from premature withdrawal of funds from the IRA "cannot be equitably equated with the untold hardship faced by dependents who remain otherwise unsupported." Id. At 562.
Judge Krafte, in the Chancery Division in Bergen County, further stated that to hold otherwise, the Court would indirectly create an effective means for an obligor to escape his support duties and thereby transfer the burden of supporting the family to the welfare facilities of the State.
The Court also noted that Federal preemption is a non-issue. Citing earlier case law, the Court pointed to the fact that the congressional objective is to protect the pensioner and his family. Finally the Court noted that an IRA is distinguishable from other ERISA pension plans in that the corpus of the account is comprised solely of the obligor's own funds. This is because an IRA is a non-employer contributory account, and is set up solely by the individual with funds not yet taxed. For these reasons, the Court held that the corpus of an IRA could be attached to meet support obligations.
In the Mallory case above, there was a judgment that had been entered against the defendant/husband in the Chancery Division for child support and alimony arrears, and the question was whether or not the IRA could be levied on in order to satisfy that judgment. The Court obviously held that it could."
Go get him.
Hanan
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<http: community.njsba.com/network/members/profile/?userkey="ac2d3146-bfb9-4e2f-98ed-015de626ceb8"> Image removed by sender. Carolyn Daly
Dec 30, 2014 8:44 PM
Carolyn Daly <http: community.njsba.com/network/members/profile/?userkey="ac2d3146-bfb9-4e2f-98ed-015de626ceb8">
Ok. So here is the scenario. Post judgment. Husband defaulted on obligations in the MSA to pay mortgage, real estate taxes, etc. and the court entered a significant judgment against him. The order is not clear if the judgment is for support or equitable distribution and the obligation - to pay the mortgage, real estates taxes, etc on the house wife was keeping - appears in both support section of the agreement and real property section. Husband has an IRA which the court froze some time ago as the court said, "in anticipation of this application" which was my application to get it liquidated to my client or transferred to her in partial satisfaction of the 6 figure judgment. Judge now says it might be exempt from those efforts.
If the judgment is for support we are all set the IRA is not exempt. However if the court says it's a judgment for ED, which is what has been hinted at, then what? Anyone have any authority that says husband shouldn't be able to shield it?
I argued that the court could re-open the judgment and PSA and assign the IRA to her as he failed to meet his obligations under the PSA. Court said I am not re-opening the PSA unless you can provide me authority.
It seems entirely wrong that husband should be making NO effort to pay her on this judgment and avoiding making real money and living with his girlfriend, etc., etc. and able to shield the IRA. Equity should say otherwise, no? So, any other ideas anyone has or help would be appreciated.
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Carolyn Daly Esq.
Morristown NJ
(973)292-9222
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Hanan M. Isaacs, Esq.4499 Route 27, Kingston, NJ
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Ok. So here is the scenario. Post judgment. Husband defaulted on obligations in the MSA to pay mortgage, real estate taxes, etc. and the court entered a significant judgment against him. The order is not clear if the judgment is for support or equitable distribution and the obligation - to pay the mortgage, real estates taxes, etc on the house wife was keeping - appears in both support section of the agreement and real property section. Husband has an IRA which the court froze some time ago as the court said, "in anticipation of this application" which was my application to get it liquidated to my client or transferred to her in partial satisfaction of the 6 figure judgment. Judge now says it might be exempt from those efforts.
If the judgment is for support we are all set the IRA is not exempt. However if the court says it's a judgment for ED, which is what has been hinted at, then what? Anyone have any authority that says husband shouldn't be able to shield it?
I argued that the court could re-open the judgment and PSA and assign the IRA to her as he failed to meet his obligations under the PSA. Court said I am not re-opening the PSA unless you can provide me authority.
It seems entirely wrong that husband should be making NO effort to pay her on this judgment and avoiding making real money and living with his girlfriend, etc., etc. and able to shield the IRA. Equity should say otherwise, no? So, any other ideas anyone has or help would be appreciated.
------------------------------
Carolyn Daly Esq.
Morristown NJ
(973)292-9222
------------------------------
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