If you have gone through a prior family law case and have obtained a court order then you know what it is like to have to live under pre-set rules. In the event that your ex-spouse has violated those court orders then the only way that you would be able to have that person held responsible would be to file an enforcement lawsuit back in family court against him or her.
An enforcement action seeks to have the family court judge issue a ruling in your favor and against that of the opposing party your case. As a part of that ruling would be findings that he or she violated specific court orders and would be subjected to a range of punishments available to the court. The violation of a court order is generally known as being held in contempt of court.
Enforcement based cases are delicate in that any errors that are made while bringing and/or presenting the lawsuit can end up destroying any chance that you have of winning the case. If you are considering representing yourself in a contempt case and not hiring an attorney I would urge you to re-think that plan. Even if your plan is to hire an attorney to bring or defend against one of these lawsuits, you are still responsible for knowing the ins and outs of doing so. After all- it is your case and not your attorney’s.
While it may seem simple enough to bring an enforcement lawsuit, I can tell you that it is not. Simply telling a judge that, “He did wrong. Here is what he did, now punish him” is not all an enforcement case is when you break it down. Today, on behalf of the attorneys with the Law Office of Bryan Fagan, I would like to share with you some advice on proceeding with an enforcement case in Texas family court.
What are the two types of contempt that a judge can decide upon?
In an enforcement case, the judge may be able to find that your opposing party engaged in two different kinds of contempt. The first is known as direct contempt. Direct contempt findings are not common in enforcement cases because these are typically acts that are done in front of the judge. Direct contempt commonly refers to acts that either hinder the court’s ability to proceed in its duty to administer justice or acts that go against the rules your judge has for how to act in the courtroom.
Much more frequently asserted and proved within a family law enforcement case are contempt findings associated with constructive contempt. Constructive contempt are findings associated with when your opposing party has violated a court order. For being found to be in violation of a court order the judge can hand down various sorts of penalties. A court can encourage your opposing party to follow the orders in certain situations. In other situations where your opposing party’s behavior is more egregious the court can impose more stringent penalties that include jail time and monetary fines.
What kind of orders did your opposing party violate?
Before we can figure what sort penalties are in store for your opposing party, we need to determine what type of orders he or she violated. Your opposing party cannot be held to be in contempt of court unless the order in question was a written order. Let’s walk through this rule by allowing me to present you with a hypothetical question that may resemble your real life situation in family court.
Suppose that in your divorce case, the judge, when setting forth her judgments after a long trial stated that your husband had to deliver to you a car at a pre-determined date and time. The judge told him that he had to drop the vehicle off at your house, in the same condition it is in now. That order was never written down and was not set forth as an order of the court in your final decree of divorce because no decree had yet been entered into the court record.
Flash forward a few months and your ex-husband never ended up dropping off the car like he was told to. Quite the opposite, actually- he went through some extra effort to damage the car a great deal. The question remains: what sort of remedy would you have against your spouse given these circumstances?
I believe that a court is likely to determine that your ex-spouse cannot be held in contempt for violating a court order that has not yet been put to writing. It would be up to the trial court judge to determine an appropriate punishment for your husband but jail time and/or a fine for these actions would not be warranted under the law.
Can you enforce a temporary order by contempt in Texas?
There are two, basic parts of a family law case- the initial phase of the case which is called the temporary orders phase and the last stage of a case that is called the final orders stage of a case. Temporary orders govern you and your spouse during the divorce while final orders are what you are seeking for the time period after your divorce has been finalized. Can you motion the judge to hold your spouse in contempt of court in the event that he violates a temporary order?
The answer to that question is, yes, but you need to be aware that there are some requirements that need to be in place for this to be true. First, whatever temporary orders have been set up in your divorce need to be crystal clear so that both you and your spouse can follow whatever orders are in place. Work with your attorney on using language that is so clear and concise that reasonable people could not disagree on the meaning of a particular order or series of orders. Using plain language and not necessarily using the language from the Texas Family Code may be your best bet.
What if the order that you are seeking to enforce was written down and memorialized in a temporary order but relates to the payment of a car loan or mortgage? For instance, consider a situation which involves your spouse being ordered within a temporary orders situation to pay the mortgage until the end of your divorce case. After having this order established, your spouse failed to make three consecutive mortgage payments. Can you move for a contempt finding against him for violating an order related to paying the mortgage bill?
The answer would be that, no, an order that relates to the payment of debt cannot be enforced by punishment of a contempt finding. The state of Texas bar contempt findings related to orders to pay debt. The state believes that it is against public policy for a person to be potentially held in prison for the failure to pay a debt, so that explains why contempt findings are not possible in a situation involving the failure to pay a mortgage loan.
If you are in a situation like this, rather than have your spouse pay the bill himself, it would make more sense to have your spouse pay you the money and then you can pay the bill yourself. For one, that way you know that the payment will be made on time and in full- you don’t have to rely upon your spouse to go through the mechanics of making the payment.
Another reason why this is a good move for you would be that if you are paid the money then you can ask the judge to hold him in contempt for the failure to pay you a payment that was ordered by the court. Think of it more like alimony than paying you for a debt.
What if you have issued with getting paid back for medical insurance costs?
A part of your divorce decree that is not often considered but can be very important is any portion of the divorce that relates to health insurance, health insurance costs or the need to be reimbursed for paying for procedures/appointments out of pocket. The problem that people run into in these situations is that the language that folks tend to use in their final decrees of divorce is rarely specific enough in order for a judge to enforce the order itself.
Say that your ex-spouse is ordered in the final decree of divorce to reimburse you for out of pocket medical expenses of a certain type. It just so happens that a month after the divorce you incur one of these out of pocket medical expenses. You paid a hefty sum of money to get a medical procedure done and are now waiting on your ex-spouse to pay you back. You submitted the costs to him just as the divorce decree ordered you to. Now you are waiting for payment and have yet to receive anything back from your ex-spouse.
You and your attorney would need to first file a motion for the judge to determine just how much money is owed to you. Your ex-spouse would then be ordered to pay that money back to you within a certain period of time. Like I noted to you at the beginning of today’s blog post, getting your money and holding your ex-spouse responsible for their violation of court orders is not as easy as you may have thought.
What happens with Junior won’t cooperate for a weekend visitation period?
Speaking of things not being easy, another area where you are likely to have some problems with your ex-spouse after a divorce is in the area of possession and access to your children. Sharing time with your kids is an area of life that you both will have to adjust to both during your divorce and in the time period immediately afterwards. What should you do in the event that your child does not want to go to your ex-spouse’s home for visitation?
If this happens and you do not force your child into the car with your ex-spouse, you can be held in contempt of the court orders. Since you have primary conservatorship of your child it is not enough to say that you had your kiddo ready at the end of your driveway but that you couldn’t get your little one to go with your ex-spouse for a weekend visit. This occurs with some frequency among divorced parents.
As a family law attorney this is a situation that I see happening quite a bit. I will get calls on a Monday morning from parents on both sides of this equation. One side tells me that their ex-spouse was texting him or her all weekend with threats of taking our client to court due to the failure of their child to come over for weekend visitation. On the other hand, I also get calls that detail situations where an ex-spouse denied our client visitation because little Junior wouldn’t get in their car to begin their weekend. I can understand the frustration both parents have in their given situation.
Your court is as likely to say that this is a situation that can not be enforced by contempt as it is to say that it can be enforced by contempt. I don’t have a strong position either way in this regard, unfortunately. What I can tell you is that your language for possession, access and visitation as found in your final decree of divorce needs to be very precise and clear so if your judge is ready to find contempt that the order may allow him to do so.
Questions about contempt and enforcement actions? Contact the Law Office of Bryan Fagan
If your ex-spouse has violated your final decree of divorce then you need to seek legal representation in order so that he or she may be held accountable. The attorneys with the Law Office of Bryan Fagan are experienced in handling matters like these and are available for free of charge consultations six days a week. Come ask us questions receive direct feedback about your case.