Legalese — Debtor’s Prison

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A Court’s judgment, it is sometimes said, is worth no more than the paper it is written on.  Indeed, I have a bookcase full of judgments which, if I could collect on them, I could retire quite comfortably to my own private Caribbean island.  Alas, it is not to be.  “But…but…” you may say.  “Isn’t there something that can be done?  Can’t the judge throw them in jail for not paying?”

Well, yes and no.  Mostly no.  Mostly, money judgments can only be collected by seizing the assets of the person who owes the money.  If they don’t have any assets of substance, then you aren’t going to get anything.  If they have a little bit – like your basic house/car/bank account with minimal balance – and you try to seize them, they will immediately file bankruptcy against your judgment, and then you will never get anything no way no how.  So, good luck.  This is something to keep in mind when negotiating a settlement.  Justice may demand that you get more, but reality may demand that you take what you can actually get.  (Justice and reality are only passing acquaintances.  They are Facebook friends, if you will, but they wouldn’t recognize each other if they met in person.)

Some types of monetary judgments or orders can result in incarceration.  Take alimony or child support.  If you don’t pay those when you were ordered to, you can be jailed until or unless you pay.  Even that, however, is not a given.  There has to be an affirmative finding that you could have paid but didn’t.  There has to be a willful refusal to pay.  If you couldn’t pay and you didn’t, you can’t be incarcerated for that.  “We do not allow imprisonment for debt in this state.”  McCullough v. McCullough, 208 Ga. 776 (1952).  We do, however, allow imprisonment for willfully disobeying a court’s order.  Those are different animals.

What is “willfully disobeying” a court’s order is within the court’s discretion to decide.  If you bring home, say, $4,000.00 a month, and decide to live in a $2,500.00 a month apartment and drive a car with a $750.00 a month payment, of course you aren’t going to be able to afford the $1,000.00 a month you were ordered to pay.  You need to downsize.  That might very well be classified as a willful contempt – you chose your luxurious lifestyle over your court obligation.  On the other hand, if you are working a double shift at McDonald’s, and supporting four children under the age of ten in your 3 bedroom home and drive a 20 year old junker, if you fall short of the $500.00 a month you have to pay, you are clearly not choosing lifestyle over your obligations.  That isn’t willful contempt.

Debtor’s prison is not a modern-day thing in Georgia, nor should it be.  Being locked up for sending a message to the Court that you’d rather pay for your manicure or your vacations or your fancy car than meet your Court-ordered obligations is fair game.

Make sense?

Nothing in this article should be construed as legal advice.  It is being offered for informational purposes only.  No lawyer can advise you about your case without hearing the personal details of your particular case.  

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