If you have done any research or spoken with an attorney on the subject of enforcement cases then you have probably seen or heard the word “contempt” used a time or two.
Contempt basically means when a person has been disobedient or fails to follow the rules of a court. If you are found to be in contempt of court there are consequences that you would face. Let’s discuss the types of contempt and therefore the punishments that are able to be applied against you.
The two types of contempt applicable in an enforcement case
There are two types of contempt- criminal and civil, and both can apply in an enforcement case. If you are speaking to an attorney and he or she discusses criminal contempt this means that the punishment applicable for violating a court order (such as a Final Decree of Divorce) is spending up to 180 days in jail and/or a fine not to exceed $500 per violation.
Civil contempt’s penalties carry with it punishments that would last for a more indefinite length of time. The end of a civil contempt penalty usually occurs when the person being held in contempt either abides fully in the order (gets caught up on child support payments, for example) or stops doing what he or she is ordered not to do in an order (failing to drop off a child after visitation at the time stated in a divorce decree, for example).
Serving your enforcement motion upon the Respondent
In an enforcement case if you are the party who is filing the motion for enforcement then you will be known as the Petitioner and the other party will be known as the Respondent. Personal service is necessary in an enforcement case.
This means that you must file your motion along with an order from the court that tells the Respondent when and where to appear for a hearing. Depending on the court you are in you may have to prepare your own order or the court itself will attach an order to your motion to be served.
You and your attorney must serve notice on the Respondent at least ten days prior to the hearing to be held. Fear not if the ten days have not been provided. You and your attorney, along with the Respondent, would simply appear at the hearing as scheduled and notify the court of the lack of notice.
The judge would have the Respondent take an oath that he or she swears to come back to court at a future date in order to have been provided the requisite notice. If the Respondent fails to appear at that date a capias may be issued against him or her that allows for their arrest to occur.
Serving your enforcement motion upon the Respondent
Because there are criminal contempt possibilities in an enforcement case the Respondent can be appointed an attorney if he or she qualifies as an indigent person. If your Respondent waives his or her right to counsel your attorney and the Respondent can engage in negotiations directly that can lead to a settlement of your case.
Depending upon the court that you are in a Respondent has varying chances at being determined to be indigent. The factors that Harris County utilizes are not necessarily the same as in Fort Bend County, and vice versa.
If your Respondent is determined to be an indigent person then an attorney will be appointed to represent him or her. The new attorney will be provided with a ten-day window to prepare for your enforcement trial.
What if the Respondent does not show up for the hearing?
Suppose that you and your attorney prepare diligently for your hearing but the Respondent does not show up. You’ve properly served him or her, the court’s record reflects that proper service was accomplished and still nobody has arrived at the courthouse.
A capias would then be issued that allows for him or her to be arrested for violating the court’s order to appear on that date. Once arrested the Respondent will be brought before the judge within a day of his or her arrest and he or she may not be in custody for any longer than five days.
When it comes to child support how much is owed?
It is pretty straightforward when it comes to missed child support payments. If your ex-spouse misses a child support payment then that in and of itself is a final judgment where the payment amount, as well as interest, becomes due. In an enforcement hearing, your court would review and confirm the amount that is due as far as an arrearage is concerned and would render a judgment based on that figure.
Your attorney will have already calculated the arrearage judgment that you all will be requesting. To do this, he or she will take the total amount of child support due and subtract the total payments (if any) made during that same time period.
An interest rate of six percent will be applied as well. If the Respondent has become current in his or her child support payments since the time that Notice was served on him or her, they cannot be held in contempt. However, attorney’s fees and court costs can still be applied against him or her in order to make you whole for having had to file the lawsuit.
Attempts to settle an enforcement and the trial itself- tomorrow’s blog post topics
Please come back tomorrow to read more about the subject of family law enforcementcases in Texas. We will get into the methods utilized to reach an agreement in an enforcement case, thereby avoiding court altogether. Should an agreement not be reached a trial will occur and that will be discussed as well.
If you have any questions in the meantime please do not hesitate to contact the Law Office of Bryan Fagan. We offer free of charge consultations where your questions can be answered by a licensed family law attorney.
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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 | Tomball, 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 Tomball, TX Enforcement Lawyers right away to protect your rights.
Our enforcement lawyers in Tomball 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 Tomball, 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.