Most family law cases in general settle before a trial is reached and enforcement cases are no different, especially those where contempt is sought as a punishment.
Contempt is basically when a court finds that you have violated one of its rules or rulings (such as those contained in a Final Decree of Divorce). What does a settlement of your Enforcement case actually look like? We will discuss this topic at the outset of today’s blog post.
Resolving an enforcement case prior to a trial
For the purposes of this section, I will be writing from the vantage point of the Petitioner- the party who filed the enforcement case. (I should note, however, that the Law Office of Bryan Fagan represents persons who are prosecuting and defending against enforcement cases.)
If you and the Respondent agree that he or she should be held in contempt for having failed to pay child support then an agreement consists of first and foremost confirming the amount of child support that is actually owed over a certain time period plus the interest that has accumulated as well.
Agreeing to be found in contempt does not mean that the Respondent will have to serve time in jail but it would mean that is a possibility of the arrearage is not paid to you in the time period that is stated within the agreement. Typically Respondents sign a Wage Withholding Order that allows the court to dip into their paychecks from work and automatically withdraw money to pay you the support amounts.
As I frequently state in this blog, it is much better to be able to reach an agreement with a Respondent on this sort of subject than to have to proceed to a contested hearing. The reason being is that the Respondent can negotiate the terms of his repaying the child support arrearage rather than being forced into a payment plan by the judge.
The Petitioner’s Case
If you are unable to settle your case prior to trial then you and the Respondent would bring your cases before the judge. As the Petitioner it is your responsibility to prove the elements of your case.
This means that it is not enough to make an assertion that child support is owed to you, for example, then expect the Respondent to prove him or herself not in violation of the Court’s order. Supposing that you are in the court that has jurisdiction over your case and that there is an Order that is in effect let’s discuss how to win on two additional elements of your case.
You will need to show the judge that specific violations of your court Order occurred. Typically in a child support case, this is done by providing an exhibit that shows dates and amounts of payments that had been due and what payments (if any) were actually made.
Likewise, a similar procedure works for you if you are asserting that the Respondent denied visitation attempts. Your journaling and record keeping should have some exact dates, times and locations to provide to the judge. Finally, you must tell the judge what punishment or relief you are seeking from him or her on that date. Whatever relief your attorney sought in your motion will be what the court can approve on your trial date.
Proving the Respondent had and has the ability to pay child support
Depending upon the court you are in you may also need to show that the Respondent possessed the ability to have paid child support on each occurrence that he or she did not. If the Respondent believes that he lacked the ability to pay then he would need to assert that both in his pleading and in the trial.
Your responsibility would then be to present evidence to the court to refute that assertion. This includes both past ability to pay and present ability to pay. Even if the judge does not need this information to find the Respondent in violation of the order, it may factor into their determination of the punishment that is appropriate based on any violation(s).
The Respondent’s case in an enforcement hearing
Once you have had an opportunity to introduce evidence into the record as well as question any witnesses you have available, the Respondent will have an opportunity to do the same.
Since we are discussing the subject of child support enforcement cases it is the case that if you ever relinquished possession of your child to the Respondent for any time periods not ordered in the Divorce Decree, then he or she will be credited for those periods of time. This means the judge can diminish the actual amount of child support arrearages to reflect those periods of time that the child was in the Respondent’s possession.
Frequently the Respondent will argue that he or she lacked the ability to pay child support and that resulted in missed or partial payments of support. To do so, the Respondent has to prove that he or she did in fact lack the ability to pay and/or lacked property that could be sold in order to pay the support as ordered. Borrowing money would also be a viable way to pay support and can eliminate the merits of an inability to pay defense.
Additional information on the Respondent’s case to be posted tomorrow
We will conclude our series of blog posts tomorrow on enforcement hearings with further discussion of the Respondent’s case.
The attorneys and staff with the Law Office of Bryan Fagan appreciate your time in reading our blog posts. If you have questions about enforcement or any other family law matter please do not hesitate to contact our office. We offer free of charge consultations six days a week where one of our licensed family law attorneys can answer your questions. Our office represents clients across southeast Texas and would be honored to speak to you about doing the same for you and your family.
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Other Articles you may be interested in:
- Reviewing your case history is crucial to success in an enforcement case
- Texas Family Law Court: Enforcement Actions
- How much will your child support enforcement case cost?
- The Steps of an Enforcement Case in Texas family law court
- Preparing for an Enforcement case in Texas
- Defending against an Enforcement Action in Texas
- Enforcement Suits in Texas Family Law, Part Five
- Enforcement Suits in Texas Family Law, Part Four
- Enforcement Suits in Texas Family Law, Part Three
- Enforcement Suits in Texas Family Law, Part Two
- Enforcement Suits in Texas Family Law: An Overview
- Child Support Enforcement Defense - Act Sooner Rather than Later
- Can my Texas Driver's License Be Suspended for Not paying Child Support?
Law Office of Bryan Fagan | Houston, Texas Enforcement Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding order enforcement, it's important to speak with one of our Houston, TX EnforcementLawyers right away to protect your rights.
Our enforcement lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles enforcement cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.