You Snooze You Lose: Do Not Wait to Enforce or Collect on Divorce Judgments

Do not “sit” on your right to enforce or collect on a divorce judgment. Let me repeat that: DO NOT wait too long to enforce a divorce judgment or any incorporated alimony, property settlement, or child support judgment. I give this counsel to all prospective clients that contact me asking whether they should bring their ex-spouse back to court to enforce alimony, property settlement, and/or child support agreements/provisions associated with a divorce judgment (collectively “divorce judgment”). If a person does not timely seek to enforce a divorce judgment, the law can and will bar enforcement of that judgment by way of the statute of limitations.

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In assessing any case, one of the very first things an attorney does is determines whether the statute of limitations has ran on a client’s claim. The statute of limitations sets a particular time period for claims and causes of action to be filed so as to ensure that such claims are “ripe” for judicial determination. If a person files a claim or seeks to enforce a judgment outside the statute of limitations–after the legally prescribed time to bring the claim has ran or expired–then the person’s otherwise viable claim will be barred by the statute of limitations because it is considered untimely, or “stale.” Despite very few narrow exceptions where the doctrine of laches or equitable estoppel applies, if the statute of limitations has expired on a given claim or right to enforce, then recovery or relief cannot be had on such a claim. See e.g., Nicholas v. Nicholas, 841 So. 2d 1208, 1212-13 (Miss. Ct. App. 2003). This concept equally applies to divorce judgments, including alimony, property settlement, and child support provisions/judgments included in, or attached to, a final judgment of divorce.

In Mississippi, the statute of limitations to enforce a divorce judgment is seven years. Miss. Code Ann. ยง 15-1-43 (2014). Mississippi’s domestic judgments statute of limitations states: “All actions founded on any judgment or decree rendered by any court of record in this state, shall be brought within seven (7) years next after the rendition of such judgment or decree, or last renewal of judgment or decree, whichever is later.” Id. Thus, a person generally has seven years to file a claim to enforce a divorce judgment or court order associated with such a judgment.

Most often the biggest point of contention when a statute of limitations issue arises rests upon when the claim or action “accrued,” or when the statutory period began to run on a given claim. Generally, the statute of limitations on monetary divorce judgments begins to run when the right to payment becomes vested, or became due. Moseley v. Smith, No. 2013-CA-01205-COA, 2014 WL 6756280 (Miss. Ct. App. Dec. 2, 2014). Regarding alimony and child support judgments, where a payor spouse fails to pay and a given payment becomes past due, each individual, periodic payment of alimony or child support triggers the statute of limitations. Thus, the right to alimony or child support does not vest when a judgment is entered, but only when a given payment becomes past due. In other words, each past due payment of alimony or child support gives rise to an individual right to enforce that payment for seven years from the date payment was due to the payee spouse.

Similarly, property settlement agreements or judgments are enforceable seven years from the date the right to enforce the agreement vests; usually from the time the agreement is breached by a former spouse. Id. at *6. For example, in Smith, the parties entered into a property settlement agreement as a result of an irreconcilable differences divorce judgment, whereby the husband agreed “to hold his ex-wife . . . harmless for any debt associated with their 1998 Chevy Camaro, which [the husband] got to keep.” Id. at *1. Sometime following the divorce, the husband filed for bankruptcy and the debt associated with the Camaro was discharged as to the husband; as a result, the creditor then pursued to collect on the outstanding debt from the ex-wife. Id. As a result, the ex-wife sought to enforce the hold-harmless provision in the property settlement agreement against her former husband. Id. The Mississippi Supreme Court found that the seven year statute of limitations for domestic judgments–rather than the three year statute of limitations for contracts–applied to the wife’s claim to enforce the hold-harmless provision. Id.

In sum, it is crucial that a person not sit on his or her rights to enforce any judgment–especially a divorce judgment. In Mississippi, if a person waits more than seven years to enforce a divorce judgment, a court will not allow that person to enforce his or her rights. Nevertheless, it is critical to consult an experienced Mississippi divorce and family attorney when faced with the issue of enforcing a divorce judgment. If you or a friend needs professional assistance in enforcing a divorce judgment or any other family law matter, please call the Law Office of M. Devin Whitt for a free consultation at (601) 607-5055.