Deciding whether or not file a lawsuit can be one the most difficult decisions you will ever have to make. In some instances if you file too early your case will not have “ripened” and you will not get the maximum benefit for having gone through the trouble of hiring attorney, filing the lawsuit and then going to court. On the other hand, if you wait too long to file suit it could be that you will have suffered so much harm in the meantime that no relief from a court can make you or your family whole again.
So, it is with all of that said that I would like to discuss with you all today some thoughts I have had regarding when to file an enforcement lawsuit in Texas. Enforcement lawsuits as they pertain to family law matters typically are related to child support, custody, visitation or possession violations. When you have a prior court order that is being violated by the opposing party from that case it can really be an annoyance at a minimum and a huge problem for you and your family in other situations.
Whenever your opposing party violates the court order he or she is technically liable for a potential enforcement lawsuit. Someone would need to file that lawsuit, however, otherwise, those violations are only occurring in the theoretical world of you two. Since your case is a civil matter it is unlikely that any police officer would get involved unless the safety of you or your children were at stake. For missed child support, you would need to file an enforcement lawsuit in order to have your ex-spouse be held accountable.
Holding off on filing an enforcement lawsuit- when should you consider this option?
If I get a phone call from a former client of the Law Office of Bryan Fagan and he tells me that his ex-wife has missed a child support payment, I will likely ask that that person to consider their options at that point. Yes, I understand that the person is upset that the other person didn’t pay the child support as ordered. However, I also understand that there may be ways to get that money without ever having to step foot in court or even file an enforcement lawsuit.
Waiting to file an enforcement lawsuit does not mean that you would be acting passively. It does not mean that you are letting your ex-spouse get away with something. It doesn’t mean that you are being “weak” when your child needs you to be “strong.” Rather, it means that you are letting the situation develop to see if any other means of achieving your goal can be sought.
Speaking of which, if you find yourself in the shoes of a person whose ex-spouse has failed to pay child support, you need to be able to determine what your goals are for your enforcement case. In the event that you have to file an enforcement lawsuit, it is not out of the question that you could ask for a wide range of punishments for that ex-spouse. That range of punishments includes jail time, potentially.
As you can tell, an enforcement lawsuit is not just some run of the mill family law case. The stakes are quite high and you have the ability to achieve a number of results- both good and bad. So that is what brings us to today’s topic- when should you move forward with a family lawsuit and when should you pull back the reigns and bide your time for a better opportunity?
Time can heal some wounds, but not others
Time is an underrated aspect of family cases. When it comes to the time period immediately following a divorce, you and your ex-spouse are likely trying to figure out how to live separate lives that are no longer dominated by the other person and your divorce. In the months after your divorce, you may make some mistakes as far as picking up and dropping your child off from school, or even in paying child support on time. In a perfect world, these mistakes wouldn't happen, but in case you haven't noticed our world is not perfect.
There should be some leeway given to your ex-spouse as far as mistakes being made early in the process. I am not saying do not address those issues with your spouse. However, I am saying that you should be willing to give that person some time to adjust to a new life as well. I have found in my years of experience working with family law clients that when someone violates the order it is just as likely that it was a simple mistake as opposed to malicious and purposeful bad acts.
Some people just feed off of your anger and frustration and that creates more of a reason to violate the court orders. Think about your kids when they were younger (or how they are now). When one kid pushes the other it is done to get a rise out of him or her. If no reaction is given then odds are good that there will not be a second push coming. However, if one push results in a push back then that is exactly what the instigator wanted.
Compare this to your own life. If you get upset with your ex-spouse for dropping the kids off 15 minutes late, or for paying child support to you three days late then there may be no reason for this being done other than to just be annoying to you. If you address it directly and leave it at that then he or she may get on track. However, if you act out of control and get angry with your ex-spouse that may encourage him or her to continue to act that way.
So, give your ex-spouse some time before jumping the gun on an enforcement lawsuit. This is not the same thing as not doing anything to protect yourself and your child. Address the problem directly, move on and see if time will heal the wounds of your divorce. If it does not and the violations keep coming then it is time to discuss the possibility of an enforcement lawsuit with an attorney.
Repeated violations are a great reason to file an enforcement lawsuit
On the other hand, if your ex-spouse shows that he or she is serious about violating the order on a repeated basis then it is time for you to consider filing an enforcement lawsuit. If these actions are harmful to your child and are impacting your own relationship with your child then you certainly should consider filing an enforcement lawsuit to have a change in their behavior occur.
A judge would be looking for evidence that would show a pattern of violations- not merely isolated violations that are remedied within a few days. Especially when it comes to child support violations, a negative impact on your child is relatively easy to prove. After all, if you rely on child support to feed your child or pay your rent then the failure to pay child support can have a direct and immediate negative impact on your child. Likewise, if your ex-spouse is dropping off your child at 9:00 p.m. on Sunday night with homework due on Monday that has not been worked on, that too can have a very negative effect on your child’s academic performance.
Again, if you can remedy the situation with directly addressing the problem with him or her you can avoid going to court. This is the best case scenario. However, some people will push and push until you tell him or her no. Sometimes that can only be done by filing an enforcement lawsuit and hiring an attorney to assist you with that process.
Think about the money at stake before moving forward with your enforcement lawsuit
To hire an attorney, take off time for work and pay court costs is all that stands in your way of recouping past due child support that is owed to you by your ex-spouse. If that amount of child support has crept up to $20,000 then I would say to go ahead and file your enforcement lawsuit. That $20,000 could end up being $50,000 before you know it. Clear history and willingness to violate the court's orders makes this a no brainer.
On the other hand, it would not make much sense for you to hire an attorney and prosecute a child support enforcement case when you are only owed $2,000 in support. Again, your ex-spouse may be working through an issue with his company’s human resources department and that would explain why you are owed those few thousand dollars. If you file your enforcement case after only a month or two you may pay more for your attorney than you get back in child support.
What may your ex-spouse do in response to your enforcement petition
If you file an enforcement petition against your espouses then you may wind up being the recipient of a lawsuit, yourself. Your spouse can always file a counter-petition for enforcement against you in the event that you have violated the court order. Or, if there is some aspect of your court order that needs to be changed then your spouse may also file a modification suit. Maybe a new work schedule makes it next to impossible to pick up your child on time on Friday evenings. Well, if you have gone ahead and filed an enforcement lawsuit it could make sense to use this opportunity to address this problem as well.
Consider your own position, as far as any violations of the order that you have done, before fully committing to your own enforcement case. Even if their allegations are baseless you will still end up spending a great deal of time defending yourself and taking time away from your own case.
Whatever agreements can be worked out in advance of going to trial in an enforcement lawsuit, the better for you and your family. One thing I will tell clients who have made it a habit of filing lawsuits against their ex-spouse is that there is never any end in sight to the lawsuits that can be filed between one another. It can create or exacerbate a vicious cycle where this is the only way of resolving problems for some people.
It is your job to figure out where the line is for your case. If you believe that the line has not yet been crossed you should address the problems directly with your ex-spouse and see if you can negotiate a settlement on your own. Those peacemaking skills will almost assuredly come in handy for other areas of your personal life.
On the other hand, if you have tried to work with your ex-spouse on a settlement and have had no luck then you need to consider your legal options. Just because you filed a lawsuit does not mean you want to go to court. Show your spouse you want to always talk before going to court and you will be better off now and in the long run.
Questions about enforcement lawsuits in Texas? Contact the Law Office of Bryan Fagan
If you are a person living in our community who has questions about family law cases in Texas, I recommend that you contact the Law Office of Bryan Fagan today. Our licensed family law attorneys offer free of charge consultations six days a week here in our office. These consultations are a great opportunity to have your questions answered and your issues directly addressed by our team of attorneys.
We are conveniently located on Cypress Creek Parkway just a few miles west of Interstate 45. Whether you are coming from the coast, east Texas, Katy or any point in between, our team of staff and attorneys want to show you how we can help you and your family.