Imagine running a marathon and feeling you would have crossed the finish line. Maybe some of you have experienced that sensation. Exhilaration mixed with extreme fatigue topped with satisfaction. Most people who run and finish a marathon do so after having created and then followed a specific plan. People usually do not wander into running a marathon. Even then, if someone did sign up for a 26.2 mile on a whim, it’s unlikely that he would be able to finish the race without having a plan of some sort.
That sense of satisfaction that we were talking about a moment ago must stick around for an extended period. You get the feeling that you did something impressive and that feeling stays with you for at least a few days. The medal you won, the memories of the race, the ability to recount to your friends and family what happened and when it happened. This is another part of running and finishing a marathon that you get to take advantage of. The ability to run the race and live to tell the tale is a benefit of executing on that plan.
Now imagine yourself after having completed that marathon- your mind already onto the next event in your life- receiving a call from the race director. Sorry, he tells you- there was an issue with the chip you wear on your shoelaces which tracks your time and progression throughout the racecourse. Seems as though you ended up going on a different route than many of the other runners. You were so focused on your goal that you didn't notice veering off course. The net result is that you need to go back and restart the race.
How frustrated would you be with the situation if this is the position in which you found yourself? Being the person who must start the race all over again? This sounds like a nightmare situation. All the effort and time that you put into the race was for not. You have to start over and fix a mistake that you did not cause. Time to lace up your shoes one more time and head for the starting line. Even if you didn't want to do it what choice did you have? Accept that the failings of someone else were going to keep you from an important goal.
This is not too dissimilar a position as you could find yourself in after completing a difficult family law case. For those of you who have gone through a child custody or divorce case, you know the complexities and challenges associated with one of these types of cases. At the end of the day, most of what was determined in these cases does not even apply to you directly. Rather, you are doing a family law case for the betterment of your children and the stability of their lives moving forward. With that in mind, what kind of circumstance would you have to find yourself in to even consider going through another family law case shortly after a child custody or divorce case?
This is the question that we are going to ask and answer in today's blog post from the Law Office of Bryan Fagan. Specifically, we want to know what options you have if your ex-spouse or co-parent is not following the court orders which came from your divorce or child custody case. Would you know what to do? Would you have the confidence to move forward and do what was unpleasant but necessary given your circumstances? These are the sort of difficult questions that you can ask yourself now so that you have an answer for them should a real-life situation involving the failure to follow court orders occurs in your real life. We are going to cover what it means to violate a court order, how you can hold someone accountable, and the steps that are involved in this process.
As we always say here on our blog, if you have any questions after reading today's blog post please do not hesitate to reach out to the Law Office of Bryan Fagan. We pride ourselves on being able to effectively manage our client's cases while advocating for them as strongly as possible. We offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations will help you to be able to understand better the issues before you and ultimately chart a course towards a specific goal that you have in mind.
What exactly is an enforcement case?
When it comes to a family law case that involves a party violating a prior court order, this is otherwise known as an enforcement case. When you file a petition for enforcement you are asking the court to hold the opposing party accountable for having violated the court order in some way. This could be by failing to pay child support on time or in full, withholding possession of your children, not having paid you the equity in your home that you were promised from the divorce, or anything else.
On a human level, this is an extremely frustrating yet relatable situation for us to find ourselves in. Who among us cannot say that we have felt like we have been taken advantage of by another person in a situation that we thought was straightforward? This is what it is like to be in a family law scenario with another person who has determined that it is not in their best interest to follow the court order. As frustrating as this may be, it is up to you to try and hold your opposing party accountable in this type of situation. It is not as if the court is going to go out of its way to monitor your situation and ensure that the other person is doing as he or she has been ordered to do. Rather, you need to be the one to hold that other person accountable.
When it comes time to think about an enforcement case you need to make some decisions for yourself. The first question is whether you need to file the case at all. Some people in your position will be concerned with “rocking the boat” or “causing problems” by filing an enforcement case against your ex-spouse or co-parent. This concern comes about as a result of having a good relationship with your former opposing party and not wanting to harm that. You may figure that as long as he or she treats your children well then you can hold off on asking for any of the child support he or she owes, for example. Or you may not attempt to receive any of the past due spousal support you are owed because otherwise, your ex-husband has paid you all the equity in your home that you were owed.
It is a normal feeling, I think, to want to let sleeping dogs lie. Our tendency as humans is to want to maintain where we are. An enforcement case could potentially change the trajectory of your life with no guarantee of success. This may not sound like a great outcome or something that you want to put yourself through. However, by not filing an enforcement case when your co-parent or ex-spouse violates your court order you are allowing him or her to get away with something that harms you. Potentially, their violation of your court order is also harming your children, as well. When you allow this person to violate the court order and not hold him or her accountable you are effectively telling him that their behavior is acceptable. Do not be surprised if he or she decides to violate the order again in that manner- or other ways.
Once you resolve to do something about these violations and file an enforcement case the next step would be to determine whether you should hire an attorney to represent you in your case. If you did not hire a lawyer for your divorce or initial child custody case, then you may be questioning whether an attorney is necessary. After all, you made it through your first family law case without a lawyer- why would you need one now?
There are a couple of responses to this question that may be appropriate based on your current circumstances. Ultimately, when you go through a family law case what you are trying to do is create a court order which is clear and enforceable. Much of the time, when you face a circumstance involving a court order being violated it is because that order was not worded well or was unambiguous. Given this reality, hiring an attorney is a great way to avoid this sort of outcome. An attorney can not only help you hold your opposing party accountable but can create a final order in this case which can ensure that he or she does not continue to violate a court order drafted previously just because the wording is ambiguous or worded poorly.
This is what an enforcement case is- an opportunity for you to address a situation that has been troublesome for you. Not only that, but you can create a better future for yourself by holding this person accountable for their bad behavior to deter future acts of bad behavior. It takes time and money to do this. However, the result can provide you and your family with a better quality of life. One that does not require you to make excuses for another person or otherwise look the other way when it comes to their behavior.
When you have made up your mind- when you have determined that you are sick and tired of being sick and tired- it is time to hire an attorney who will support you and advocate for you. The attorneys with the Law Office of Bryan Fagan are here to serve you and your family. We work tirelessly for our clients and would do the same for you. For a free-of-charge consultation with one of our experienced family law attorneys, you can contact us today.
What is it like to be involved in an enforcement case?
Once you decide to file an enforcement case you have made it past the largest hurdle you will face at any point during your case. They say that the journey of 1000 miles begins with a single step. This saying is extremely true when it comes to an enforcement case. Simply having the fortitude to move forward on a case like this when you have already been through a difficult family law case is not easy. Rather, the easiest thing to do would be to do nothing and instead suffer while the other person violates your court order. When you decide to hold this person accountable you have decided to benefit yourself and your family.
One of the big mistakes that I see people make when it comes to an enforcement case is to not ask questions in situations where questions should be asked. If your attorney has the heart of a teacher, then he or she will be able to go over a lot of different areas with you and answer your questions patiently. This should be one of the major characteristics that you are looking for when it comes to you hiring an attorney. When you have hired a lawyer, you should make sure that you take advantage of his or her expertise. Remember that you are the one making decisions within your case and not the attorney. The attorney is supposed to execute your decisions while educating you so that you are the one in the driver's seat. Do not lose sight of this and if you have questions make sure to ask your attorney before proceeding.
At the beginning of an enforcement case, it is common to send the other party a simple letter under your attorney’s letterhead. This is assuming that you have already spoken to him or her directly about the problem that you have been experiencing as far as the orders being violated are concerned. If you have not addressed the issue directly with him or her then you should do that first. This is a sensible thing to do before you even hire an attorney. You may find that a simple misunderstanding or misapplication of the court order is to blame for the violation as opposed to purposeful actions on the part of your opposing party. It is better to assume negligence rather than malice in other words. However, you need to confirm that a mistake was made instead of purposeful bad behavior. You cannot go on assuming negligence when there is ample evidence to suggest that the other person is purposefully trying to take advantage of you.
Once you have addressed the issue with your opposing party and have determined that it was not a simple misunderstanding which could explain the violations then you need to act. Hiring an attorney is a good place to start. Sending a letter to the person is the likely next step. There is something about receiving a letter from a lawyer which seems to be more impactful than sending a letter yourself or even an email. We get mail and email all the time and disregard much of what we receive. However, if you are in a position where you receive a letter from a lawyer’s office you are much more likely to pay close attention. This is especially true when the lawyer notes at the conclusion that he is prepared to file a lawsuit on behalf of his client (you) if the opposing party does not come around and see the case their way.
After waiting an appropriate amount of time for a response, the next step would be to file an enforcement case. This is really where your attorney will come in handy. Your attorney will draft an enforcement petition noting each time that the court order has been violated, the nature of the violation, and the number of times that this has occurred. Whether it be missed child support payments or the failure to make your children available for a visitation session, the more detail you can be the more likely you are to get what you want out of the case.
You can ask the judge for your opposing party to pay you the child support owed (with interest) as well as to have him or her pay your attorney's fees. On top of that, a $500 fine per violation can be requested. There are different remedies and relief which you can seek depending on the type of violation you are facing. In a situation like this, it is a good idea to lean on your attorney for their expertise and guidance in an area of the law which you probably have not dealt with very much.
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