In the majority of family law cases, reaching a settlement is the typical resolution before moving forward to trial. This applies to enforcement cases as well, especially those involving contempt as a punitive measure. Contempt essentially involves a court’s determination that you have violated one of its rules or rulings, typically outlined within a Final Decree of Divorce. So, what does a settlement in your enforcement case involve, particularly within the context of an enforcement hearing? We will explore this critical aspect at the beginning of today’s blog post.
Resolving an enforcement case before a trial
For this section, I will be writing from the vantage point of the Petitioner. This is the party who filed the enforcement case. (I should note, however, that the Law Office of Bryan Fagan, PLLC, represents persons who are prosecuting and defending against enforcement cases.)
Suppose you and the Respondent both agree that the Respondent should be held in contempt for failing to pay child support. In that case, an agreement must first confirm the amount of child support owed over a specific period plus the accumulated interest.
Agreeing to be found in contempt does not necessarily lead to the Respondent serving jail time. However, it does introduce the possibility that you may not receive the arrearage payment within the agreed-upon period. Typically, Respondents sign a Wage Withholding Order. This allows the Court to dip into their paychecks and automatically withdraw money to pay you the support amounts.
As I frequently state in this blog, it is much better to agree with a Respondent on this sort of subject than to have to proceed to a contested hearing. The reason is that the Respondent can actively negotiate the terms of repaying the child support arrearage instead of being subject to a payment plan imposed by the judge.
The Petitioner’s Case
If you cannot settle your case before trial, you and the Respondent would bring your issues before the judge. As the Petitioner, it is your responsibility to prove the elements of your case.
This means you must do more than simply assert that child support is owed to you; instead, expect the Respondent to actively prove they are not in violation of the Court’s order. Supposing that you are in the Court that has jurisdiction over your case and an Order in effect, let’s discuss how to win on two additional elements of your case.
You will need to show the judge that specific court order violations occurred. Typically in a child support case, this is done by providing an exhibit that shows dates and amounts of payments due and what payments (if any) were made.
Likewise, a similar procedure works for you if you assert that the Respondent denied visitation attempts. Your journaling and record-keeping should have exact dates, times, and locations to provide to the judge. Finally, you must tell the judge what punishment or relief you are seeking from them 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 can pay child support
Depending upon the Court you are in, you may also need to show that the Respondent possessed the power to have paid child support on each occurrence that they did not. If the Respondent believes that he could not pay, he would need to assert that in his pleading and 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 demonstrate the 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 appropriate punishment 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 and question any available witnesses, the Respondent will have an opportunity to do the same.
In child support enforcement cases, if you ever relinquished possession of your child to the Respondent during periods not ordered in the Divorce Decree, the court will credit the Respondent for those times. This allows the judge to reduce the amount of child support arrearages to reflect the periods when the child was in the Respondent’s possession.
Frequently the Respondent will argue that they could not pay child support, resulting in missed or partial support payments. The Respondent has to prove that they cannot pay and lack property that could be sold to pay the support as ordered. Borrowing money would also be a viable way to pay support and eliminate the merits of an inability to play defense.
Conclusion
Reaching a settlement is often the preferred outcome in family law cases, including enforcement matters involving contempt. Understanding the implications of contempt and the potential for settlement before an enforcement hearing is crucial. By delving into this aspect at the outset of a case, individuals can better navigate the legal process and work towards a resolution that meets their needs and objectives. Ultimately, striving for settlement can streamline proceedings, reduce conflict, and lead to a more efficient and satisfactory resolution for all parties involved.
Additional information on the Respondent’s case is 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, PLLC, appreciate your time 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 we would be honored to discuss representing 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 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?
- A Tale of Two Parents: Enforcing Child Custody Orders in Texas
- When does your duty to pay child support end in Texas?
- Should a Divorced Parent Sign a Waiver (Release) and Indemnity Agreement to Allow a Child to Participate in Recreational Activities?
- What is the average amount of child support per child?
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
