You make use of following settled law of the land as pronounced by Hon’ble Supreme Court of India, various High Courts and circulars of the State govt
A Memorandum Of Understanding (‘MOU’) is generally a preliminary understanding between the parties to a contract, prior to the execution of a formal agreement. It is a document highlighting the intention of the contracting parties and might also be known as a Letter of Intent (‘LoI’). MOU is generally executed for creating consensus between the contracting parties for future contracts and is usually not intended to have created any obligations upon the parties. Primarily, what must be understood is that a MOU is non-binding and legally non-enforceable and is only an “agreement to agree” and highlights business relationship, which, are likely to result in some contract or any formal agreement between the parties. However, a MOU may create an obligation upon the parties if a binding understanding is inferred from the clauses of the MOU.
Several judgments have been pronounced by various courts of India on the validity and enforceability of a MOU. Calcutta High court held that ‘a contract to enter in a contract is bad and not valid from the point of view of law. However, the court will rely upon the degree of importance of such understanding to the parties and to the fact that whether any of them has acted in reliance on such understanding’.
In another contradicting judgment, the Supreme Court has held that, ‘the fact that the parties refer to the preparation of an agreement by which the terms agreed upon are to be put in a more formal shape does not prevent the existence of a binding contract. The Supreme Court also held that ‘if the conditions to the MOU are otherwise acted upon, the parties to the MOU will get the benefit arising out of the MOU’.
A MOU does not have to be necessarily titled as a ‘Memorandum of Understanding’. The nature of the document is not decided on the heading but on the content that is written. Mere heading or title of a document cannot deprive the document of its real nature.
In light of the above, it can be concluded that the enforceability and binding nature of a MOU depends upon the content, nature of agreement, language and intention of the parties to it. In cases wherein the MOU is in the nature of a contract and fulfills its essentials, it is held to be enforceable. A major factor to decide whether a MOU would be binding is the intention of parties while executing the MOU and their conduct post execution.
Jyoti Brothers vs. Shree Durga Mining Co. [AIR 1956 Cal 280]
Kollipara Sriramulu vs. T. Aswathanarayana &Ors [1968 AIR 1028]
Jai Beverages Pvt. Ltd. vs. State of Jammu & Kashmir And Others [2006 (4) SCJ]
Nanak Builders And investors Pvt. Ltd. vs. Vinod Kumar Alag [AIR 1991 Del 315]
What are some ways to collect when your ex won't pay alimony?
When your former spouse is not paying alimony, returning to divorce or family court should be your first action. Seek the help of an experienced divorce or family law attorney to represent you. Show the court evidence that your former spouse has not made payments, has not made full payments, or has not made timely payments. Collect written proof of late or partial payments. Explain how your former spouse’s actions are causing you financial difficulty.
You may have to go back to divorce or family court repeatedly. Your former spouse may continue to disobey the court’s order to pay you. If this happens, the judge will likely institute a charge of contempt of court against your former spouse. Your former spouse will now have a contempt of court case with a second judge about their failure to obey the first judge.
Contempt of Court for Non-Payment of Spousal Support
The second judge may order your former spouse to pay the alimony to you as well as court costs for the contempt of court case. Your former spouse is likely to obey the second judge’s order. They can face fines and incarceration in a contempt of court case. It may happen that the first judge does not institute a contempt of court case and your former spouse continues to disobey the court’s order. There are several other ways to get your former spouse to pay alimony.
Other Ways to Collect Unpaid Alimony
The three most common ways are mediation, a lawsuit in small claims court or a higher court, and wage garnishment. In mediation, you need a certified mediator. You may also want your attorney present. Mediation involves both parties sitting down with a mediator and coming to an agreement.
Collecting Unpaid Spousal Support by Filing a Lawsuit in Small Claims Court or a Higher Court
The second method, a lawsuit in small claims court or a higher court, is an action against your former spouse for debt collection. This method of collecting typically requires an initial court date in which you state that you are owed a specific sum of money. At this court date, the defendant, your former spouse, will be asked if they want a trial regarding the matter. If they do, the second court date is usually the trial. At this proceeding, both parties present their evidence.
You go to small claims court if the amount you are owed is under a certain amount. You go to a higher court if the amount is over the small claims court limit. The amounts vary state to state. Talk to your local clerk of court to determine the appropriate court for your case. Also ask your clerk of court if the court considers it appropriate for you to pursue an alimony-related matter in small claims court. It is not typical that you would do so. A judge may dismiss the case and instruct you to pursue the debt collection through divorce or family court.
Collection of Unpaid Alimony Through Wage Garnishment
The third avenue, wage garnishment, varies widely between states. Wage garnishment can involve a variety of procedures. One common procedure involves you filing for wage garnishment in a civil action after winning a small claims or higher court lawsuit. Another common procedure involves you filing for wage garnishment directly with your former spouse’s employer.
When you file for wage garnishment in a civil action, submit the judge’s order in the small claims or higher court lawsuit. This is your proof that your former spouse has been directed to make a payment. One situation in which you can file for wage garnishment directly from your former spouse’s employer is when your former spouse works for the federal government, which includes the U.S. military. If your former spouse works for the federal government, you will need a specific legal order from a judge or magistrate directing the government to withhold moneys from your former spouse’s paycheck. The order should also instruct the federal government to send the moneys to you.
Wage garnishment is a tricky business. Federal law protects a certain percentage of a debtor’s income. The amount allowed by wage garnishment is also regulated by state statutes. Typically people who are the head of a household or make under a certain amount have a certain amount of their wages protected. Even if you are successful in a wage garnishment action, you get in line after other parties who may have already established judgments against your former spouse. When you get paid depends on your order in line.