family lawcases in general settle before a trial is reached and
enforcement cases are no different, especially those where contempt is sought as a
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
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.
If you want to know more about what you can do,
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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.
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,
Houston, the FM 1960 area, or surrounding areas, including
Fort Bend County and