Once you have hired an attorney to represent you in an enforcement case, there are some steps that you should work with your attorney to complete before actually filing the paperwork with the clerk of your court. I realize that if you are owed child support, you may not want to wait another minute to have the judge address the violations of the Divorce Decree by your ex-spouse.
However, if you and your attorney understand the history and background of your case, you will be in a better position to successfully manage your case and achieve your goals in a hearing.
The reason for doing this is simple. It is unlikely that you remember every aspect of your divorce case, even if it occurred just a few years prior. Legal matters all sort of blend together, and if you were represented in your divorce by an attorney, it's possible that they provided you with information and updates that were more general than specific.
In this case, you will not be able to provide the sort of history to your current attorney that is necessary for them to make a full assessment of what has occurred in the past.
Understand your Divorce Decree Backwards and Forwards
In your initial consultation and any supplemental meeting with your family law attorney, it is good practice to bring your Final Decree of Divorce for them to review. The reason for this is that your attorney should be able to check the portion of the Order that you are attempting to enforce and determine whether or not it is even enforceable.
The Order should be straightforward clear and offer specific instructions to both you and your ex-spouse on your various responsibilities under the Order. If anything is so non-specific, vague, or unclear as not to allow your ex-spouse to understand their responsibilities, then a judge may not side with you in your enforcement case.
It is unclear how your ex-spouse was to pay the child support to you; there will likely be difficulty convincing your judge to hold them accountable for failure to deliver timely and complete child support payments.
Let's discuss this topic more regarding Enforcement in a family law order and what is not. There are multiple ways that an order could be read as unenforceable, but for our purposes, I'd like to focus on the one you would be most likely to see in your enforcement case.
Understanding these limitations can provide you with information that could influence your decision whether or not to file Enforcement in the first place if you are seeking jail time as a punishment for your ex-spouse's violations.
Not enforceable: language in an order that is not clear
Suppose the Order you assert your spouse violates does not explicitly state what your ex-spouse is being ordered to do and how they are expected to do it. In that case, jail time is not possible as a punishment for failing to do whatever you assert was not done.
For instance, if an Order could be read one of two ways, the Order is most likely not clear enough for a contempt finding in your enforcement case. You may be successful on some level, but if a child support order could be read two different ways, you may end up receiving payment based on whichever reading is more favorable to your ex-spouse.
Drafting the actual motion for Enforcement
Make no mistake that your attorney will be responsible for drafting any paperwork filed in court. With that said, you may not be in a position to hire an attorney at any given time, and knowledge of how to do so may be incredibly relevant to you then.
Otherwise, simply knowing what you and your attorney need to assert in your motion and later prove in court can help frame your case to understand the issues better.
Straightforwardly and concisely, your enforcement motion must state the specific portion or portions of your Final Decree of Divorce that your ex-spouse has violated. This is done most of the time by literally copying and pasting parts of the Divorce Decree into the Motion for Enforcement.
Further, the violations must be detailed individually. How your spouse violated the provisions you are stating that they did must be laid out. If you have been journaling or logging the violations, all your diligence will pay off in this area.
If you are asking a court to address violations regarding missed child support payments, you will need to include the amount owed to you, the amount paid, and the difference between those two numbers.
The last thing on this subject that I would like to mention is that careful drafting is necessary. If you fail to state issues in your motion that are important to your case, you cannot raise them for the first time in the hearing. If we look back at the point I made earlier about Enforcement being a part civil, part criminal case, it is necessary that your ex-spouse know what they are facing in terms of allegations ahead of time. Raising those issues for the first time in a hearing is not allowed.
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Other Articles you may be interested in:
- 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?
- 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?