Suppose that you and your wife got divorced three years ago here in Harris County. The divorce was a long time coming but was still difficult for you and your family. Not only did a ten-year marriage come to an end, but you and your ex-spouse are now having to share custody of your two children. Co-parenting started a little rocky with her, but you all seem to have found some consistency in your possession exchanges as well as in sharing parenting responsibilities. Nobody told you how tedious it was to share medical bills, insurance cards, and the like with an ex-spouse.
When your Co-parent doesn't respect and follow those court orders you spent so much time negotiating, that can become incredibly frustrating and disheartening. Your post-divorce life hinges upon both you and your Co-parent having mutual respect for those orders and a willingness to follow them. When you're exposed, decide to skirt the rules and ignore the principles you have agreed to previously that require you to take action to ensure that additional violations of the court orders do not occur. Ultimately, their violations of the order hurt more than just your pride: they potentially hurt your relationship with your child.
Whether it is regarding child support, Visitation, or possession of your final decree of divorce, the marching orders for you and your family now and in the future. It can no doubt be difficult to live under a court order rather than see your child whenever you please or run various areas of your life in the way you choose. However, by getting a divorce, you have voluntarily open yourself up to the jurisdiction of a Texas family law court. As such, you are bound to follow the orders of that court now and in the future.
A family court can enforce the terms of their prior court orders by holding the violating spouse in contempt of court. This means that if a violation is found to have a curd, then a formal finding of contempt allows a court to issue punishments ranging from fines, attorneys fees, and jail time. The key to getting to this point is successfully filing an enforcement lawsuit and then having a court grant your requests for punishment regarding those violations. Let's take some time to discuss what it means for a court to find your spouse to violate a court order.
What is an enforcement case?
An enforcement lawsuit is one in which you may request that a court review actions of your co-parent that may violate your final decree of divorce. You are asking the court to enforce the terms of your divorce decree. Think of the final decree of divorce like a contract, and you and your ex-spouse are business people who have negotiated that contract. If your co-parent is not living up to their end of the bargain, then you are within your rights to seek a court’s review of those alleged violations.
When you file an enforcement lawsuit, you must follow some precise rules as far as the pleadings are concerned. You must specify the type of violation, provide details about that violation, and then ask for a remedy from the court. The remedy from the court could be something like make-up time for parenting time that was lost with your kids, attorney’s fees for having to hire a lawyer to proceed with this case, and/or holding your ex-spouse in contempt of court, as discussed earlier in today’s blog post.
An enforcement lawsuit touches on matters that occurred after an initial family law case was filed and decided. Once you and your opposing party have orders issued by a court in your divorce, child custody, or child support case, then you are obliged to follow those orders. The failure to follow those orders will result in the possibility of any of these punishments being handed down upon you as well as additional consequences moving forward.
Some requirements must be in place for your family court order to be held enforceable through contempt proceedings. Probably foremost among them is that the language contained in the order must be clear, unambiguous, and specific. In other words, you and your Co party have to know exactly what the court ordered to be held in contempt for having violated the order. For example, if your family court order is nonspecific and ambiguous as to what requirements are in place for child support. If your ex-spouse does not pay child support according to the terms of the order, you may find yourself in the position of not holding them accountable.
This is true even if you understood the intent of the order and could not follow its terms otherwise. If your Co-parent does not have the same understanding of the order or does not follow its terms, then you probably would not be able to enforce the order. This means that the order is not worth the paper that it was printed on. After spending time, money, and emotional output on a divorce or child custody case is probably the last thing you want to be the result of your trip to the courthouse.
The odds are that the court will then attempt to clarify the order before you all leave the courthouse. This way, the problems that brought you to the courthouse will not occur again due to ambiguity in the order. However, that does not mean that any punishment will be handed down due to the violations of the court order.
What happens when a party is found in contempt of court?
Suppose you are successfully able to prove that your Co-parent has violated a portion of your court order, then and you needed to have requested a contempt of court finding in your enforcement petition for the court to consider it. Assuming that you have properly done so when your Co-parent is found to be in contempt of court, the family court judge can then order them to pay a fine or even order that your Co-parent is sent to jail for their violations of the court order. Typically, court orders regarding child support most frequently end up with jail time being ordered. However, ordering a party to jail does not occur very frequently overall.
In a way, this makes complete sense. For example, if your Co-parent has been unable or unwilling to pay you child support, then the rationale to send them to jail for having done so will not exactly help you out when it comes to getting money in child support. This is an argument that I always hear: how can a person earn money to pay child support in jail?
Therefore, sending your Co-parent to jail may not be the best option for you or your family. It may make you feel good or even feel like a sense of justice has been restored in the world, but over the long haul sending them to jail will likely not put any money in your pocket. Consider that many employers would fire your Co-parent for not showing up to work even with a valid excuse. Causing your Co-parent to lose their job would be the ultimate backfire on any enforcement case that sought jail time into contempt of court proceeding.
What happens many times is that if your judge were to award jail time to your Co-parent, they might suspend the jail sentence. This means that the judge will hold out the jail sentence as a possibility for them to endure if certain conditions are not met as far as paying you back child support or other conditions outlined in a pending order. Having to pay attorneys fees, court fees or fines per violation are all realistic possibilities. For up to five years, community supervision, commonly known as probation, could also be the result of being found in contempt of court.
Another lesser-known consequence of being held in contempt of court by a family court judge after an enforcement case would be placing a requirement on them that they need to go to counseling or therapy. These counseling or therapy sessions could center around things like planning out of the financial future, budgeting, managing their time, or even receiving alcohol or drug therapy. If it is obvious to the judge that a certain condition in your Co parent's life led to a violation of the court order, this may be the focus of therapy or counseling.
If a suspended jail sentence is the result of the case, then your family court judge will order your Co-parent to appear back in court at a later time to catch up on their progress or lack of progress in meeting the requirements of the suspended jail sentence. If your Co-parent has not met the terms of the suspended jail sentence order, then your Co-parent will likely serve jail time.
What must be contained in a motion for enforcement?
None of the preceding information on being found in contempt of court becomes relevant until a motion for enforcement has been filed in argued effectively. Since the consequences of being held in contempt of court are so serious, the state places pretty strict restrictions on filings. Your motion must be clear about what portion of the prior order has been violated and clear on what relief is being sought. Additionally, the type of noncompliance being alleged must be clearly stated as well.
Additional requirements are in place when it comes to you filing a motion for enforcement of child support. A motion for enforcement of child support must include the amount that your parent owed as provided in the court order as well as the amount paid in any amount of arrearages. Figuring out these figures should not be difficult. After all, all you would have to do is go to the attorney general's website and include a copy of the Child Support Ledger between you and your Co-parent as an exhibit to your motion.
How late is too late to file an enforcement motion over child support?
It is a worthwhile question to ask how long after you have been made aware of the nonpayment of child support can you go ahead and file a motion to enforce the prior court order. Acting quickly in most areas of life would seem advantageous, and it is no different when it comes to child support nonpayment. The sooner you act, the more likely you are to nip the issue in the Bud and prevent your Co-parent from making it a habit as far as not paying support in the future.
However, a family court would retain jurisdiction to issue contempt orders for the failure to pay child support as ordered if your motion for enforcement is filed no later than two years after the date your child becomes an adult or the date on which your child support obligation terminates under the prior court order. This is a relevant consideration because your Co-parent's obligation to pay child support would either end on your child's 18th birthday or on the date on which they graduate from high school, whichever occurs later.
What can your Co-parent offer as defenses for the nonpayment of child support?
Even though your Co-parent's nonpayment of child support may seem like a pretty cut and dry subject, the fact is that they will very likely have some defense is ready as far as why the support was not paid in full or on time. One of the more common defenses allege by folks defending themselves in an enforcement case would be that the party to whom child support was paid voluntarily relinquished to the payor of child support possession and control of the child.
The relinquishment of possession and control must have been beyond the periods are loaded in the court order. For example, if your Co-parent did not pay you child support for March because your children stayed with him the entire month, then this may be a valid argument to make as far as the defense against your enforcement case is concerned. You need to counter their evidence and provide information to a judge showing why you did not relinquish possession of your children during this time.
Another valid defense to the failure to pay child support is if your Co-parent could not pay in the ordered amount. This is a tougher argument to make, given that there are many opportunities to earn income sufficient to pay child support. If your co-parent did not have separate property or other assets that could be utilized to obtain cash or alone to pay child support, then that may be an opportunity for them to offer a defense for the failure to pay.
Do you need an attorney to proceed on an enforcement case?
In my opinion, you do need an experienced attorney to achieve success in an enforcement lawsuit. With so much at stake in this type of case, it is not recommended that you proceed without someone who has been through the process before. Arguing and enforcing motions successfully in court and drafting and enforcement motions can be more easily said than done. If you lack the time and ability to do so, it would be wise to seek representation before proceeding to court.
Many attorneys focus their practice on enforcement cases, and you can seek those lawyers out by interviewing them. For example, the attorneys with the Law Office of Bryan Fagan are all experienced in filing and defending clients in enforcement lawsuits. The burden is on the filing party to present evidence sufficient to have a motion for enforcement granted. For that reason, you absolutely should hire an attorney who has experience presenting information to a judge clearly and concisely.
Questions about the material presented in today's blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material presented 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 can go a long way towards helping you learn more about the world of Texas family law as well as about how your family may be impacted by the filing of a divorce or child custody case.
I appreciate your interest in our law practice. Our attorneys and staff take a great deal of pride in being able to serve our community. We look forward to the opportunity to speak to you about how we can best serve you and your family.