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The Divorce Court Has the Power to Order a Spouse to Pay or Deliver Property to a Third Party to Ensure Payment is Executed

In this Orange County divorce, husband and wife separated after a 16-year marriage. The divorce court determined 71% of husband’s military retirement fund was community property, and thus wife was entitled to half of that sum. The divorce court ordered husband to pay 35.5% of the amount he received monthly from the federal government to wife.

Husband’s Orange County divorce attorney appealed the judgment of the court which gave wife an interest in his retirement pay. While the appeal was pending, wife’s Orange County divorce lawyer sought spousal support and husband was ordered to pay wife $270 per month while the appeal was pending. The order included a provision where if husband’s Orange County divorce attorney’s appeal was unsuccessful, then husband would get credit towards the property owed to wife for the amount paid in spousal support based on the temporary orders.

Husband’s Orange County divorce lawyer appealed the divorce court’s judgment all the way to the Supreme Court where it decided military retirement pay is community property and subject to division. Wife’s Orange County divorce attorney had made numerous attempts to collect the money owed by husband to wife, however, each attempt failed. Finally, wife’s Orange County divorce attorney petitioned the Orange County Superior Court to hold husband in contempt for non-payment of his obligation. Wife’s divorce attorney argued under Code of Civil Procedure section 572 requiring husband to deposit 35.5% of his military retirement fund in court.

Husband’s Orange County divorce lawyer appealed this decision as well, arguing section 572 cannot be applied to enforce the division of community property. The Court of Appeal sided with husband’s Orange County divorce attorney’s argument holding section 572 is “exclusively a prejudgment remedy” which would not apply in this case, where there had already been a judgment. However, the Court of Appeal reaffirmed the power of every court to compel obedience in its judgments and orders. In addition, the Court of Appeal affirmed the power of a divorce court to order a spouse to pay money or deliver property to a third party, in this case, the Superior Court of Orange County.

In re Marriage of Fithian (1977) 74 Cal. App. 3d 398