ENFORCEMENT

ENFORCEMENT

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You have divided your community assets and debts; set child support; agreed on conservatorship, possession and access; and spousal support. Finally, after months of court proceedings, you have a certified copy of your final order that either you and your spouse agreed upon or was ordered by the court. Perhaps, the final order is for a Suit Affecting Parent-Child Relationship and not a divorce. Perhaps, you are only half-way through your case, but have Temporary Orders in place. Regardless, having a court order in your hands that addresses these and other issues, is quite a relief. The deal is sealed. Right? Maybe.

Unfortunately, there are times when one or both parties refuse to comply with the court order. The possessory conservator doesn’t pay child support; the managing conservator interferes with the other parent’s possession and access; property that was awarded to the other person is not transferred as agreed. So, what do you do?

Regrettably, the answer is: file an enforcement action against the person not in compliance. It hardly seems fair that after months or years to obtain a order, you have to return to court and pay legal fees to have it enforced. But that is what must be done if you want the court to force that person to comply. If the court finds that the non-compliant party is in contempt (failed to obey a court order), you may be awarded attorneys fees, fines can be imposed, and, in some situations, that person may lose their license and/or receive jail time.

The following is a brief overview of what is required of a motion for enforcement, the timeline for enforcement, and the possible outcomes.

MOTION FOR ENFORCEMENT OF CHILD SUPPORT

A motion for enforcement of child support must include:

  1. the amount of child support owed as provided in the order;

  2. the amount of child support paid, and the amount of arrearages; and

  3. if you are requesting that the Obligor (the person responsible for paying child support) is held in contempt, the precise language in the order you allege has been violated, and for each date of alleged contempt, you must state the amount that was due and the amount that was paid.

DEADLINES FOR FILING A MOTION FOR ENFORCEMENT OF CHILD SUPPORT

The court that entered the most recent order retains jurisdiction and has the right to render a contempt order for failure to pay child support if the motion for enforcement is filed with that court no later than six months after the date:

  • the child turns 18 years of age; or
  • the child support obligation ends under the order or by operation of law.

NOTE: A motion for enforcement of child support can not be filed with the court unless the Obligor is a minimum of 30 days late on payment.

DEADLINE TO COLLECT ON CHILD SUPPORT ARREARS

The court that entered the most recent order retains jurisdiction and has the right to confirm child support arrears and render a money judgment for past-due child support, if the motion for enforcement is filed with that court no later than the tenth anniversary after the date:

  • the child turns 18 years of age; or
  • the child support obligation ends under the order or by operation of law.

AFFIRMATIVE DEFENSES TO MOTION FOR ENFORCEMENT OF CHILD SUPPORT

Does the court always find the obligor in contempt of court for failure to pay child support as ordered by the court?

That depends. Although the Movant’s (the person who filed the suit against you) motion may contain specific violations of the court order, and there is evidence that Obligor failed to pay child support, there are some defenses the court may consider:

VOLUNTARY RELINQUISHMENT

If the Movant/Obligee (person receiving child support) voluntarily relinquished control of the child to the Obligor, and the Obligor has had the child for periods of possession longer than that ordered by the court, but continued to pay child support, then the Obligor may receive credit for child support paid during the time the child primarily lived with him/her.

INABILITY TO PAY

The court may rule in favor of the non-compliant party if the Obligor can prove that he/she:

  • lacked the ability to provide support in the amount ordered;
  • lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed;
  • attempted unsuccessfully to borrow the funds needed; and
  • knew of no source from which the money could have been borrowed or obtained legally.
DIRECT CHILD SUPPORT PAYMENTS

If the Obligor can prove he/she made direct payments to the Obligee, but was not given credit for all payments made, the court may dismiss the motion for enforcement of child support. Obligor must have a complete record of all payments made, not accounted for, and proof in the form of cancelled checks, receipts from money orders or cashier’s checks. Stating that you paid Obligee fifty dollars in cash weekly, does not serve as proof, unless Obligee admits to receiving said payments.

REMEDIES

If the judge finds the Obligor to be in contempt of court, there are several remedies available to collect what is owed:

  • Wage Witholding Order – arrears (child support payments owed) are deducted in monthly installments from Obligor’s paycheck. If self-employed, Obligor makes direct monthly payments to Obligee, until the arrearage is paid in full.
  • Child support lien – a child support lien is placed against Obligor’s real property, for the specific amount of arrears, including interest.
  • Suspension of Licenses – Obligor’s licenses may be suspended for failure to comply with a court order. This may include driver’s license and/or any professional licenses.
  • Commitment – the court may order Obligor to serve jail time.
  • Qualified Domestic Relations Order (QDRO) – payment for arrears may be secured by a QDRO – an order for a retirement plan to pay a specific amount of funds to a specific person.

MOTION FOR OF THE TERMS AND CONDITIONS OF CONSERVATORSHIP AND/OR POSSESSION AND ACCESS

If you are being denied visitation, or if the other parent is not complying with the terms and conditions of conservatorship, you may file a motion for enforcement. Keep a complete and accurate record of each time the other party failed to comply with the order. For each violation, you must state the following:

  1. date;
  2. place; and
  3. time.

NOTE: It will not suffice if you simply state the other parent did not allow you possession and access of the child during your period of possession. You must have appeared at the place designated in the order to pick up the child.

DEADLINES FOR FILING A MOTION FOR ENFORCEMENT OF TERMS AND CONDITIONS OF CONSERVATORSHIP AND/OR POSSESSION AND ACCESS

The court that entered the most recent order retains jurisdiction and has the right to render a contempt order for failure to comply with the terms and conditions of conservatorship and/or possession and access if the motion for enforcement is filed with that court no later than six months after the date:

  1. the child becomes an adult; or
  2. when the right of possession and access terminates under the order or by operation of law.

REMEDIES

If the judge finds a parent or legal guardian to be in contempt of court, there are several remedies available to enforce the terms of possession and access of the child:

  • Habeas Corpus – A writ in a child custody case through which the court exercises it’s authority to end an unlawful retention of a child that is in the possession of a non-parent or wrongfully possessed by a parent who does not have a right to possession. When there is no court order in place, and time is of the essence, a Habeas Corpus may be a powerful legal solution.

  • UCCJEA – Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a Texas court may recognize a child custody order rendered in another state, and may use any remedy under the law of the state to enforce it.

MOTION FOR ENFORCEMENT OF SPOUSAL SUPPORT AND/OR PROPERTY

For other violations of the order you wish to have enforced, you must file a motion for enforcement that includes:

  1. the precise language in the order you allege has been violated and for which you are seeking an enforcement;

  2. state with clarity, but in concise language, the manner in which the non-compliant party failed to comply; and

  3. state the relief you are requesting.

AFFIRMATIVE DEFENSES TO MOTION FOR ENFORCEMENT OF SPOUSAL SUPPORT

Does the court always find the obligor in contempt of court for failure to pay spousal support as ordered by the court?

That depends. Although the Movant’s (the person who filed the suit against you) motion may contain specific violations of the court order, and there is evidence that Obligor to pay spousal support, there are some defenses the court may consider:

INABILITY TO PAY

The court may rule in favor of the non-compliant party if the Obligor can prove that he/she:

  • lacked the ability to provide support in the amount ordered;
  • lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed;
  • attempted unsuccessfully to borrow the funds needed; and
  • knew of no source from which the money could have been borrowed or obtained legally.

REMEDIES FOR ENFORCING SPOUSAL SUPPORT

If the judge finds the Obligor to be in contempt of court, there are several remedies available to collect what is owed:

  • Income Withholding – spousal support payments owed are deducted in monthly installments from Obligor’s paycheck. If self-employed, Obligor makes direct monthly payments to Obligee, until what is owed is paid in full. (This does not apply to contractual alimony or spousal maintenance as certain circumstances may affect the remedies available. Consult with Nancy E. Lusk for specifics on your case.)

  • Qualified Domestic Relations Order (QDRO) – payment for spousal support payments owed may be secured by a QDRO – an order for a retirement plan to pay a specific amount of funds to a specific person.

REMEDIES FOR ENFORCING PROPERTY DIVISION

If the judge finds a party to be in contempt of court and has failed to deliver property as ordered, there are several remedies available:

  • Clarification Order – There are times when terms in the order entered with the court is not specific, and thus, because the language is not clear enough to be enforced, the court may render an order clarifying those terms, and allow the party a reasonable time to comply.

  • Delivery of Property – The court may order that certain property or an equivalent sum of money be delivered to the other party by date certain.

  • Money Judgment – If the property to be delivered under the terms of an order no longer exists or was disposed of, the party that failed to comply may be ordered to pay damages to the other party.

  • Attorneys fees and costs – The non-compliant party found to be in contempt of court may be ordered to pay the other party’s attorney fees and costs.

CONTEMPT OF COURT

If the court finds a person guilty of contempt of court for failure to obey an order rendered by that court, the non-compliant person may be faced with:

  • fines;
  • penalties;
  • jail time;
  • suspension of driver’s license, passport, and/or any professional license;
  • the IRS may seize their tax refund until the arrears are paid in full; and/or
  • attorney fees to be paid to the Movant (the person that filed the motion for enforcement).

ENFORCEMENTS

The information provided above is only a brief overview of Enforcements, and is not to be considered legal advice. Every case is different, and the specifics in your situation may affect the outcome of your suit. The need for an enforcement can be incredibly frustrated. However, to ensure that your rights are protected, and you receive what was previously awarded to you, contact the Law Office of Nancy E. Lusk at 281-242-2700 or click the button below to send Nancy E. Lusk a message.