When you and your co-parent went through your family law case together, the conclusion of the case resulted in both of you signing off on final orders. By signing your name to that document the two of you agreed to abide by the terms of that order in full and at all times. The purpose of your doing so was to put you and your family in a position where you could develop a level of trust with one another and co-parent together effectively. The judge and your attorneys would not be present moving forward in your case. As a result, the two of you had to learn how to trust one another so that you would follow through and honor your word regarding this order.
However, as the experienced family law attorneys with the Law Office of Bryan Fagan will tell you, unfortunately, that is not always the case regarding people not honoring their word in a family law circumstance. One of the most frustrating parts of your life after your divorce or child custody case comes to an end may be having to deal with a co-parent who does not honor their word or the court orders that were created as a result of your case. The bottom line is that you may be left in a position where you have to work to hold your co-parent accountable for their violations of the court order while protecting your rights concerning your children.
Two ways to hold your co-parent accountable for their violations are through enforcement and contempt procedures. Make no mistake, there are many ways for a person to violate a family court order regarding your children. Child support, child custody, health insurance, and a bevy of other children-related issues were likely included in your final orders. As a result, if your co-parent failed to follow those orders and you have options when it comes to accountability in your case. With that said, you need to learn about how best to move forward in these types of circumstances and how to protect your rights on a practical level.
Contempt and enforcement of prior court orders
One of the most important attributes of a court order, in terms of its enforceability, is to make sure that the order is worded specifically. The more general the language that is utilized the more likely it will be that the order is difficult to enforce. Putting yourself in the position of a family court judge, imagine having to enforce a court order that uses imprecise language and difficult-to-understand wording. Most judges would not feel competent issuing contempt orders or enforcing a prior order that was worded in this way. As a result, the orders that you worked so hard to negotiate for or obtain through a child may not be worth very much at all.
However, if you were careful about how you worded the court order in question then filing a motion for enforcement is an option that you can take advantage of in Texas. The same rule applies regarding specificity that we saw earlier with your prior court order. A motion for enforcement must be worded in a particular way and follow a certain format to move forward. For that reason, we highly recommend that you consider hiring an experienced family law attorney from the Law Office of Bryan Fagan to assist you in this regard. There is nothing worse than utilizing your time and money to file an enforcement case only to find out that a mistake was made in drafting the document and your enforcement proceeding can be successful as a result.
An attorney from our office can sit down with you and help you determine whether the order in question Is enforceable. We will help you look through the language contained in the order and give our opinion about whether the language is necessarily specific enough for a family court judge to likely allow you to move forward with an enforcement case. Again, trying to enforce a poorly written court order is a fool’s errand. It costs money to file a family law case and it costs your time to go to court only to find out that the judge will not honor your request. On top of that, your relationship with your children may have been harmed because of the violation of the court order that can now not be enforced.
If our attorneys determine with you that the order in question is not enforceable, then we can work alongside you to file a motion to modify the court order so that misunderstandings or violations do not happen in the future as a result of squishy language. You can rest assured that if your Co-parent took advantage of a poorly written court order that he or she will likely do so again. A motion to modify cannot necessarily correct any past wrongs but it can correct a poorly written order to ensure that you allow yourself to not have to come to court again to enforce a poorly drafted order.
Child support enforcement
One of the most common types of enforcement cases that are filed every day in Texas has to do with child support enforcement. There are many areas related to child support that could be an issue in your case. Your co-parent may have underpaid child support over a considerable length of time, failed to make payments altogether, or made late payments consistently. Additionally, your co-parent may have even stopped paying child support over a misunderstanding, purposeful or not, regarding when he or she could stop paying child support based on the age of your child. When it comes to money and your children this can be an extremely contentious topic.
A common method of trying to collect on child support violations of a court order includes receiving past due child support as well as interest. Many times your co-parent would not be able to pay you back the entirety of the amount owed in one sitting. As a result, you may need to negotiate for a payment plan so your co-parent can pay you back the amounts owed over a certain period. On top of child support, your co-parent is likely responsible for providing your children with health insurance. If he or she has not done so, then you can also file enforcement in this regard. However, you should be clear about what the language in your final order states as far as this subject is concerned.
Visitation or possession enforcement
One of the most basic parts of child custody or conservatorship order relates to making sure your children are where they are supposed to be each day of the year. Under a standard possession order, both you and your co-parent are given instructions on how to divide up your children's time between the two of you throughout the year. Again, in a well-written order, each day of the year should be accounted for as far as your time with your children. One of the most common issues regarding possession and visitation has to do with the manner of pick up and drop off of your child on weekends in holiday periods of possession. If you believe that violations have occurred in this regard you should be careful to read the language of your order and then contact an attorney with our office as soon as possible to address any issues that you believe occurred as far as violations of the possession and visitation orders. In a perfect world, you can receive make-up visitation time or periods of possession in response to your co-parent having violated these orders previously.
As we will see in a moment, being able to hold your Co-parent in contempt of court is a major advantage to be able to have regarding an enforcement proceeding. However, this form of relief from the court is not available to you if the language from your original court orders is unclear or not specific enough to be enforceable. This can be one of the great frustrations that a family goes through in terms of needing to be able to hold someone accountable for bad acts, yet being unable to do so because of poor drafting in your initial family law case.
Enforcing a court order by contempt
So long as your court order is enforceable, and your enforcement petition is well drafted a Texas family court has many avenues available to it in terms of holding your co-parent responsible for violating prior court orders. By holding your co-parent in contempt of court, a judge can order him or her to spend up to six months in county jail for each violation. Please note that these jail terms will be served concurrently so the most amount of time your co-parent would have to spend in jail would be six months.
The beauty of an enforcement case as it pertains to child support is that a family court judge can order you're a co-parent to not only pay money owed for child support but also interest on the Child Support owed and any other costs associated with your children that may be outstanding. For example, if your co-parent has yet to pay you back for an expense related to your child’s medical care then this cost can be rolled into the amount owed for child support. For this reason, you must be able to accurately calculate the child support owed as well as any other costs associated with caring for your child.
What our attorneys will do for you is also to push as hard as possible regarding having your opposing party pay your attorney’s fees. After all, were it not for your spouse willfully violating a court order you would not have to have hired an attorney in the first place. As a result, if your spouse is found to be responsible for owing you child support then it is also very likely that he or she could be ordered to pay your attorney’s fees.
There are some additional circumstances that we wanted to bring to your attention in terms of their requirement to pay child support. The first is that your co-parent can offer certain defenses to their failure to pay support. Probably the most widely utilized defense in this regard is simply telling the judge that he or she was unable to pay child support due to financial problems. In that case, a judge asked to see any documentation your co-parent may have regarding their pay or financial circumstances. Although losing their job is not necessarily a reason alone to not have to pay child support it will be taken into consideration by a family court judge when issuing orders on the subject.
Another issue that oftentimes comes up about child support would be that he or she has made direct payments of child support to you. However, as any family law attorney would tell you direct payments of child support do not count for the official child support ledger. As a result, any child support that your co-parent has paid you does not officially count towards any child support obligation.
Preparing for an enforcement case
To close out today's blog post from the Law Office of Bryan Fagan I would like to share with you some thoughts on what you can do to prepare for an enforcement case in a Texas family law court. The first thing that I would do if were I in your shoes it would be to make sure that you are confident about what is contained in your prior court order. Sometimes your memory may be almost certain that the order says something when it doesn't. For that reason, you should review your court order periodically so that you can be sure of what day the order states you and your co-parents' responsibilities are. If you are unclear on what your orders state, then you should be sure to reach out to the attorneys with the Law Office of Bryan Fagan. We can meet with you to discuss the enforcement matter and even review the language of your orders with you.
Next, you should make sure to meet with an attorney who practices family law so that you can learn more about an enforcement case and what you can do to prepare for your specific circumstances. As we mentioned earlier in today's blog post drafting an enforcement petition can be more complex than many people give it credit for. As such, drafting your documents without the assistance of an experienced family law attorney can be complicated. In that type of scenario, you should make sure to interview multiple attorneys to determine which lawyer you feel the most comfortable with and which offers you the best combination of experience and value.
Something that our attorneys do when we are representing someone in your position who needs enforcement filed would be to send a letter to your co-parent from our office informing him or her that you have hired an attorney to proceed with an enforcement case. However, before filing the enforcement you are sending this letter to first determine whether it would be possible to settle your issues out of court rather than move forward with a lawsuit. Sometimes this is all it takes to move negotiations forward and avoid a lawsuit.
However, if this method is not effective then enforcement would be filed, and a hearing date confirmed. Once notice has been provided to your co-parent you could then move forward to see if your co-parent would be agreeable to attending mediation with you. Mediation is a process whereby you and your co-parent could meet with an experienced family law mediator to determine whether or not a settlement may be possible.
The bottom line is that it is not a good option for you to not pursue an enforcement case if your Co-parent has violated your court order willfully. Being able to directly address these issues with the family court judge is certainly an option for you and will be better than allowing your co-parent to potentially violate your court orders again. With the assistance of an experienced family law attorney, you can address the wrongs committed against you and have peace of mind moving forward.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great opportunity for you to learn more about the world of Texas family law as well as about how your family’s circumstances may be impacted by the filing of a divorce or child custody case. Thank you for your interest in our law office.
