Enforcement

The enforcement of family law related court orders involves complex issues of pro­cedural law, criminal law, statutory interpretation, and case law. Depending on what kind of order is sought to be enforced, there are many different remedies available.

Contempt of Court. Contempt of court is defined as the failure of someone to obey a lawful order of a court, disrespect for the judge, or disruption of the proceed­ings through bad behavior. A judge may impose civil (a fine) or criminal (jail) sanc­tions for someone found guilty of contempt of court. Contempt of court is often referred to simply as “in contempt”.

The two basic types of contempt, criminal and civil, are defined by the punish­ment imposed. For criminal contempt, the punishment is incarceration in the county jail for a time certain (maximum of 180 days per violation) and/or a fine (maximum of $500 a violation).

Contempt can be further classified into two categories based on when the offen­sive act occurred. Direct contempt is when the contemptuous acts occur in the pres­ence of the judge. If someone is disrespectful to the court, the court has the authority to hold that person in direct contempt and assess a fine or incarcerate the person. If the acts occurred in the past and must be proven to have occurred, then the contempt is constructive. Child support and visitation violations are examples of constructive contempt.

Why is the original order important? The original order specifically spells out what must be done to comply with the order. The language must be dear, specific, unambiguous, directive, and cannot be subject to more than one interpretation or meaning. If these requirements are met within the original order, then the order may be enforced by contempt.

Motion for Enforcement. A motion for enforcement is a motion filed with the court to enforce a final order for conservatorship, child support, possession of or access to a child, property division, spousal maintenance, or other provisions of a final order.

What must be stated in a motion to enforce? The motion to enforce must be clear as to what type of punishment is being requested (criminal or civil or both), including how many days and/or the amount of the fine requested.

If the punishment requested is incarceration for more than 180 days and/or a fine of more than $500, the person being sued for enforcement, called the respondent, may request a jury trial and may be entitled to a court appointed attorney if the court finds he does not have adequate income or resources to afford one.

A motion to enforce a child support order must:

  1. include the amount as provided in the order, the amount paid, and the amount of arrearages; and
  2. if contempt is requested, must include the portion of the order allegedly vio­lated and, for each date of the alleged contempt, the amount due and the amount paid, if any.

A motion to enforce an order other than for child support, must, in ordinary and concise language:

  1. identify the provision of the order allegedly violated and sought to be enforced;
  2. state the manner of the respondent’s alleged noncompliance;
  3. state the relief requested by the movant; and
  4. contain the signature of the movant or the movant’s attorney.

What deadlines apply to getting a contempt or enforcement order? When bring­ing a motion for enforcement the first thing that must be addressed is whether a court retains jurisdiction to render a contempt order. A contempt order for failure to com­ply with orders must be brought by the following deadlines:

Enforcement of Child SupportA contempt order for failure to comply with a child support order can be brought in the last court to hear the case if the motion for enforcement is filed no later than six months after the date: (1) the child becomes an adult; or (2) the child support obligation ends under the order or by operation of law. However, if the enforcement suit is brought to collect child support arrearages, the statute of limitations does not apply and is indefinite.  A court can put you in jail, fine you, and make you pay the other party’s attorneys fees if you have not paid your child support. You can also lose your driver’s license, any professional license (like a law license, plumber’s license, etc.), and your passport.  Your federal tax refund will also be seized every year until the arrearage is paid.

Enforcement of Property DivisionFor personal property in existence at the time of the divorce decree, the suit must be filed before the second anniversary of the date the decree is signed or becomes a final order after appeal, whichever is later, or the suit is barred. For future property not in existence at the time of the divorce decree, the suit must be filed before the second anniversary of the date the right to the prop­erty matures or becomes final, whichever date is later, or the suit is barred. [Texas Family Code Section 9.003.]

Enforcement of Spousal MaintenanceThe Texas Family Code is silent regard­ing the enforcement of spousal maintenance as it relates to a statute of limitations.

Enforcement of VisitationA motion to enforce possession or access to a child must be filed not later than six months after the child turns 18 or six months after the right of possession and access ends under the order.

How must I notify the opposing party (the respondent)? The motion to enforce must be personally served on the respondent accompanied by an order to appear at a “show cause” hearing. The respondent is entitled to ten (10) days’ notice of the hearing. If the respondent is served less than ten (10) days before the court date, it is easy to avoid any problems by simply swearing the respondent to reappear at a later date, unless the respondent will waive the ten (10) days notice. If the respondent is served with the order to appear less than ten (10) days before the hearing date, the respondent must still appear in court on the hearing date, or a capias may be issued for his arrest.

Claiming affirmative defenses in an enforcement action? In defending against enforcement motions, the respondent has several affirmative defenses he or she may claim, including the following:

Child Support Defenses

  1. Custodial parent (obligee) voluntarily allows child to live with the par­ent ordered to pay child support (the obligor). This is called voluntary relinquishment. If the obligee (the custodial parent) voluntarily gave actual control and possession of the child to the obligor (the noncustodial parent) for a longer period of time than the court-ordered periods of possession, and actual support of the child was supplied by the obligor, then the obligor is entitled to a credit up to the amount of the periodic payments previously ordered for the time the child primarily lived with him or her.
  2. Inability to pay the court ordered child support. If the obligor can prove that he or 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 legally obtained, the court may dismiss an enforcement claim.
  3. Money paid directly to the other parent is not induded in the child sup­port record, or the child support record is wrong. If the obligor (non­custodial parent) can prove that he or she was not given credit for all pay­ments made, the court may dismiss an enforcement claim or give the oblig­or a credit for a portion of the enforcement claim brought against him. Proof may be in the form of cancelled checks or receipts from money orders or cashiers checks. However, many courts will not give the obligor credit for direct payments made to the obligee if the child support is ordered to be paid through the registry or if the decree contains the provision that any payments made outside the registry are deemed to be gifts.
  4. Past behavior. The judge will consider past behavior in regard to punish­ment or sentencing. An obligor can also seek to introduce evidence that goes to punishment. Since the sentencing hearing is not in a separate hearing as in criminal cases, any evidence necessary for the court to impose a sentence less than the movant is asking for needs to be introduced at the hearing.

Spousal Maintenance Defenses. For the enforcement of spousal maintenance, these additional defenses apply: lack of ability to provide maintenance in amount ordered; lack of property that could be sold, mortgaged, or otherwise pledged to raise the funds needed; unsuccessful attempts to borrow the amount ordered; and lack of knowledge of a source from which to borrow or otherwise legally obtain the amount ordered.

Habeas Corpus Defenses. Habeas Corpus is a remedy to have the child imme­diately returned. Defenses that apply to habeas corpus suits include arguing that no valid order exists or that the other parent voluntary relinquished possession of the child in excess of six (6) months.

Remedies available for enforcing Child Support Orders? When enforcing child support orders, Texas courts have several different options which include:

  1. Income withholdingThe court may order income be withheld from the paycheck of the obligor in an amount sufficient to pay off the judgment of arrearage in not more than two years. If the obligor is self employed, or oth­erwise not subject to wage withholding, the obligor must make periodic payments to the obligee in an amount sufficient to pay off the arrearage and discharge the judgment within a reasonable time. The obligee can request that the court require the obligor to post a bond to ensure compliance with a withholding order.
  2. Child support lienAnother way to enforce a child support order is by placing a child support lien by operation of law against any real or personal property of the obligor for the amounts of the child support due and owing, including accrued interest. The amounts do not have to be confirmed in court before the obligee can obtain a child support lien. However, the lien is subject to the requirements for perfection as found in Section 157.312 of the Texas Family Code.
  3. Suspension of licensesA child support agency or obligee can file a peti­tion to suspend the license of an obligor who has an arrearage equal to or greater than the total support due for ninety days under a support order. The obligee must first file the petition for suspension of the license and issue notice to the obligor of such filing. If the obligor responds, a hearing will be held from which an order suspending the license can be issued. The entity that issues the license will receive a copy of the order and will then notify the obligor of the suspension. Any license listed in Section 232.002 of the Texas Family Code may be suspended including: driver’s license, plumbing, pharmacy, alcoholic beverage, architects, barbers, public accountants, pest control, engineers, polygraph examiners, nurses and doctors, attorneys, midwives, department of health and psychologists.

Under Chapter 232 of the Texas Family Code, a court or the Title IV-D agency (the Office of the Texas Attorney General) may issue an order suspending a license if an individual who is an obligor: (1) owes overdue child support in an amount equal to or greater than the total support due for three months under a support order; (2) has been provided an opportunity to make payments towards the over­due child support under a court order or agreed payment schedule; and (3) has failed to comply with the repayment schedule. In addition, there are two other instances that warrant license suspension under Chapter 232: (1) when a parent or alleged parent has failed, after receiving appropriate notice, to comply with a subpoena; and (2) when a court has rendered an enforce­ment order with a finding that the individual has failed to comply with the terms of a court order providing for the possession of or access to a child.

  1. CommitmentAs discussed previously, criminal contempt can be pun­ished by incarceration in the county jail for a time certain not to exceed 180 days per violation or a fine not to exceed $500 per violation. Civil contempt can be punished by incarceration for an indefinite period of time until the obligor performs or stops performing a specific act. Thus, if a child support arrearage is $3,000, a court can order the obligor incarcerated for up to 180 days under criminal contempt and a civil sentence of “day to day thereafter until the respondent pays the arrearage of $3,000.”
  2. Community SupervisionWhen an obligor is held in contempt, he or she may be sentenced to a period of incarceration with the sentence suspended so long the obligor meets certain terms and conditions instead of being jailed. Those terms and conditions may include things such as: visits from a community supervision officer, attending counseling, paying child support arrearages, court costs and attorney’s fees, participating in mediation, or seeking employment assistance services. The period of community supervi­sion cannot exceed 10 years.
  3. Qualified domestic relations order (QDRO)Payment of past due child support or spousal maintenance can also be secured by a QDRO. With this option, the child or spouse is named as the alternative payee and monies are distributed to the child or spouse. With child support, the plan participant (the obligor) is taxed for such payments. QDRO is more fully described in the definitions section of this handout.

REMEDIES AVAILABLE FOR ENFORCING VISITATION ORDERS

When enforcing visitation order, Texas Courts have the following remedies:

  1. Habeas CorpusWhen a quick remedy is needed and contempt is not appropriate, relief can be sought through a habeas corpus proceeding. This proceeding is most useful when there is no court order and a child is in the possession of a non-parent or when a court order does exist and the child is wrongfully possessed by a parent who does not have a right to possession. This suit must be brought in the court of continuing, exclusive jurisdiction or in the county where the child is found. This suit invokes the authority of the court to end an unlawful retention of a child.
  2. Warrant to take possession of childTexas has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which pro­vides a court of this state shall recognize and enforce a child custody deter­mination of another state. Under the UCCJEA, a court of this state may use any remedy available under the laws of this state to enforce a child custody order. Thus, upon the filing of a petition seeking enforcement of a child cus­tody order, the petitioner may file a sworn application for the issuance of a warrant to take physical custody of a child if the child is imminently likely to suffer physical harm or be removed from this state. If the court finds evi­dence of imminent physical harm or removal from the state, a court may issue a warrant to take the physical custody of a child. The respondent must be served with the petition, warrant and order immediately after the child is taken into custody.

REMEDIES AVAILABLE FOR ENFORCING PROPERTY DIVISIONS

When enforcing property divisions, Texas courts have the following remedies:

  1. Clarification orderIf the terms of an original order are not clear or spe­cific enough to be enforceable by contempt, the court may render a clarify­ing order setting forth specific terms to enforce compliance with the origi­nal division of property. A court may issue a clarifying order on a party’s own request or on the court’s own motion. A court must provide a reasonable time for compliance, however, before it can enforce a clarifying order by contempt or other remedy.
  2. Delivery of propertyA court may make an order to deliver specific exist­ing property awarded to a party, including an award of an existing sum of money or its equivalent.
  3. Money judgmentIf a party fails to comply with a final decree of divorce and delivery of property is no longer a viable remedy, a court may order a money judgment for damages caused by a party’s failure to comply. A money judgment rendered in this situation may be enforced by any means available for enforcement of judgment for a debt.
  4. Right to receive future propertyA court may enforce an award of the right to receive a payment or payments due to an owning spouse in the future. The subsequent receipt of said money by the non-owning spouse of such property imposes a constructive trust on property awarded to the own­ing spouse in a divorce decree for the benefit of the owner.
  5. Attorneys fees and costsThe court may award costs in a proceeding to enforce a property division against a disobedient party. In addition, the court may also award reasonable attorneys fees as costs in a proceeding to be paid directly to the attorney.
  6. Turnover OrderIf the enforcement is sought for any award other than child support, the court has the authority to order the obligor to turn over all non-exempt property, documents, and records to the petitioner if three requirements are met: (1) the judgment debtor owns property, including a present or future right to property, (2) the property cannot be attached or levied on by an ordinary legal process, and (3) the property is not exempt from attachment, execution, or seizure for the satisfaction of liabilities.
  7. Suit for breach of contract or suit for declaratory judgmentChapter 9 of the Texas Family Code provides a method for enforcement of the prop­erty division by allowing the filing of a suit for breach of contract or a declaratory judgment within two years of the signing of the decree.

REMEDIES TO ENFORCE COURT-ORDERED SPOUSAL MAINTENANCE (ALIMONY)

Lastly, to enforce court-ordered spousal maintenance, the Texas courts have the following reme­dies:

  1. Income withholdingIn a proceeding in which periodic payments of spousal maintenance are ordered, modified, or enforced, the court may order that income be withheld from the disposable earnings of the obligor. However, this does not apply to contractual alimony (agreements reached without a court order) or spousal maintenance unless (1) the contract specif­ically permits income withholding, or (2) the alimony or maintenance pay­ments are not timely made under the terms of the contract. However, the court may order additional income be withheld above the current spousal maintenance to be applied toward the reduction of any arrearages. This additional amount withheld must be in a manner that will discharge the arrearages in the least amount of time: either (1) an amount sufficient to dis­charge the arrearages in not more than two years; or (2) 20% of the amount withheld for current maintenance.
  2. Qualified Domestic Relations Order (QDRO)Payment of past due spousal maintenance can also be secured by a QDRO. With spousal main­tenance, however, the payee will be taxed for such payments so the benefits of a QDRO for the enforcement of a spousal maintenance order may not be the most cost-effective choice. QDRO is more fully described in the defini­tions section of this handout.

YOU CANNOT BE HELD IN CONTEMPT IN ALL CIRCUMSTANCES

Not all orders are enforce­able by contempt. The following are restrictions on the enforceability of orders through contempt:

  1. Orders for the payment of debts (e.g., your husband was ordered in the divorce decree to pay off the MasterCard bill) are not enforceable by contempt, as such would violate Article I, Section 18, of the Texas Constitution.
  2. A person cannot be held in contempt for failing to perform an act he is inca­pable of performing.
  3. The court cannot hold a person in contempt for something that is beyond its power to order.
  4. A person cannot be held in contempt unless the judgment or order specifically “spells out” what the respondent is to do and how he is to do it.

Even if an order cannot be enforced with contempt, however, there may still be contractual remedies to enforce the terms of an agreed decree.

This article is not intended to be legal advice and is not a substitute for legal representation by an attorney. You are encouraged to seek the advice of your own attorney to answer any specific legal questions you may have.