What happens if you agree to a certain amount of maintenance per month being paid to your spouse in the divorce settlement agreement, and later discover that you cannot afford these payments?
In such a case the divorce settlement agreement is made a court order and if you do not comply with this, you are in breach of the court order. The one party can usually then enforce the court order by issuing a writ of execution against the party who is in default and even attach the assets of that party if necessary in order to cover the amount by which he or she is in default.
However before that route of enforcing the court order with a writ, there are other options open to the party who is unable to pay. One of them is when he or she asks in a simple letter drafted by his or her attorney to the other side for a "moratorium" on the maintenance payment. This basically means not having to pay the maintenance agreed upon in the divorce order for a certain period of time, e.g. six months or a year.
In one of my cases I acted for the man. The divorce order stated that he had to pay monthly maintenance of R3000.00 per month until his ex-wife's death or remarriage. At the time of the divorce, my client had been doing fairly well but had now run into quite a bit of financial difficulties.
I advised my client that we write a letter to his ex-wife's attorney asking for a "moratorium" on the maintenance payments for a one year period. We did so and it was agreed.
In our letter to her attorney we pointed out that our client had picked up a considerable amount of debt after the divorce. He was on the point of losing his business, as he owed creditors money. We pointed out that the creditors were busy suing him, and if that he didn't honour his obligations they may obtain a Judgment against him and he would lose his business.
Fortunately in this matter, the other side understood the severity of the matter. They agreed to a moratorium of the maintenance payments for a period of eight months. This would give our client enough time to pay back on his loans. They understood how important this was.
After a divorce people usually are a bit worse off financially that when they were married. Whilst living together there is only one household to support, but post-divorce there are all of a sudden now two households to support. And that is when people struggle to comply with divorce orders.
It is good rather to try settle matters of maintenance outside court, as we did in this case, rather than in court. Costs of issuing writs and enforcing court orders are high. Sometimes it is not a bad thing to agree to a "moratorium" on the maintenance payments.
This article was written by Cape Town divorce lawyer, Peter M Baker
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