If you are in a position either where your ex spouse or the other parent
to your child has violated, repeatedly, a prior court order you may be
asking yourself how to handle the situation. The easiest thing to do,
but that which would probably anger you the most, would be to do nothing.
If you don’t take action against the violations of the other party
to your order nothing will happen. It’s as simple as that. You cannot
simply ask a police officer or constable to go have a talk with your ex
husband or wife about listening to the judge.
Quite honestly, it’s my experience that the “do nothing”
approach is what people choose to do with the greatest amount of frequency.
If you are in a position like this I can’t say that I blame you
for taking this position. It is not easy to attempt to enforce a court’s
order. It costs money to enforce a court’s order. It takes time
and energy to enforce a court’s order. Sure, maybe you’re
owed a little
child support and maybe your ex spouse returns the kids on Sunday nights a little later
than she’s supposed to. What’s the use of going to court?
Today’s blog post is going to discuss with you the utility of filing an
Enforcement action in a
family law case. Even if you don’t believe that an enforcement will do much
to curb the bad actions of your ex spouse I can tell you from experience
that you are mistaken. Not only is it worth you while in all likelihood
to file an enforcement but the penalties that can be assessed against
the other party to your order can be far reaching and extremely impactful.
Let’s get into the subject matter now.
An enforcement is what, exactly?
I sort of danced around what specifically an enforcement action is in my
opening so here is a legal definition for you- an enforcement is a lawsuit
filed against a person for violating a court order. There are a fairly
wide range of penalties that a judge can use against someone who has violated
a court order. The most common that people have heard about is holding
a party in
contempt of court. This means that the person has gone against the order of a judge/court
and the law provides for remedies in the form of fines and possible jail time.
Other mechanisms used to enforce an order include paying back missed child
support and providing additional time with a parent who was denied
visitation due to the bad acts of the other parent. A Family Court in Texas can enforce
orders regarding child support,
access of a child, property division and spousal maintenance.
The role of the Texas Attorney General in a Child Support Enforcement case
For child support specifically, the Texas Attorney General becomes involved
in the process in that they are the state agency responsible for collecting,
establishing and enforcing child support orders on behalf of the State.
You’ll notice that I didn’t say that the OAG represents individual
parents. Sometimes potential clients will come into our office and say
that he or she was under the impression that the OAG was going to help
him or her get some back child support. While the end result may be that
just that, the OAG is out to represent our State and not you as an individual.
The reason the Attorney General is so concerned about child support payments
being made on time and in full has to do with the frequency with which
people who have child support either being paid to them or paid from their
income have children on public assistance of some sort. If your child
is on Medicaid, for example, the OAG wants to ensure that child support
is collected in part to reimburse the State for paying for your child’s
health insurance. The OAG can help to adjust child support levels based
on the guidelines set forth in the
Texas Family Code and can actually file an enforcement for child support owed just as you
could on your own.
Getting to court- how do you get in front of a judge?
The goal in an enforcement case is to address the violations, remedy them
and then seek additional orders to ensure that the violations do not occur
in the future. While it is possible to settle this issues out of court,
it is possible that negotiations will be fruitless. In that event you
will need to have a judge address your petition in a hearing. If you are
requesting a contempt penalty be assessed against the other party then
you will need to personally serve him or her. Ten days notice before a
hearing is necessary in this situation.
As I stated a moment ago, it is possible to settle your enforcement case.
Prior to your hearing it is customary for your attorney and the opposing
party’s attorney to chat and see if a settlement can be reached.
If so, the parties will go before the judge and put their agreement on
the record and the attorneys will go back to their offices to work on
drafting an order based on that agreement. If no agreement can be reached
the parties will go before the judge to have a formal hearing on the matter.
An enforcement hearing and its possible results- the subject of tomorrow’s blog post
Come on back tomorrow for a discussion on what an enforcement hearing looks
like and what can result from one. If in the meantime you have any questions
regarding this subject please do not hesitate to
Law Office of Bryan Fagan. One of our licensed family law attorneys is available six days a week
to meet with you in a free of charge consultations. We can answer your
questions and discuss the services that our office can provide to clients
who we represent.