Once your divorce has been finalized and you and your ex have gone your separate ways, you both still need to comply with the court’s orders regarding the division of property, child support, child possession, and a host of other issues covered in your final divorce decree. Securing positive terms in the final decree was only half the battle. Actually making sure they happen when they’re supposed to happen is the other half, and that battle can go on for many years, particularly if there are children involved.
That’s why motions for enforcement are one of the most important tools in your divorce lawyer’s toolbox. Because those who violate court orders may be held in contempt, and possibly serve jail time, motions for enforcement must meet a high standard. If your ex-spouse is in violation of the court’s orders, here are some important things you can do to help your attorney secure the best possible resolution.
- make sure the court’s order is very specific
- understand what the court has ordered
- keep careful, specific records of violations
- talk to your lawyer
- be reasonable
- take matters into your own hands
- be in a hurry
- assume jail is the only remedy
- put your children in the middle of you and your ex
- leave enforcement to a non-expert
Before your divorce or SAPCR (suit affecting the parent-child relationship, which is used to seek custody, visitation, child support, etc.) is over, you’ll want to inspect the court’s order to make sure it is specific on what is being ordered to be done, by whom, when, and where. There should be no ambiguity or anything left open to interpretation. Without that kind of specificity, you might find it difficult to enforce the order in the most aggressive way – contempt. If the order is unclear, you may have to go back to court first to clarify the original order and make it more specific, then wait until it is violated again before you can file another enforcement action.
If you are unclear on what the order requires, don’t assume “it will all work out.” If there’s a lack of clarity on your part, there’s probably a lack of clarity on the other side’s part, and that lack of clarity can work to your extreme disadvantage. If you’re confused by anything in the order, talk to your attorney sooner rather than later.
If your ex is late with payment of child support, keep a detailed record of what was owed and when, what was paid (if anything), and when, as well as any communication on the subject. If custody/visitation is the issue, the same rule applies. Requests for orders of enforcement win or lose on the issue of specificity, so simply declaring that your ex “never paid child support” or “didn’t return the child on time” or “didn’t deliver the property as ordered” is not going to be successful.
Enforcement of court orders isn’t a DIY project. Because of the specificity required in the motion for enforcement, it is essential that you consult an attorney with experience in drafting successful enforcement motions. In addition, because incarceration is a possible remedy for violations of court orders, enforcement hearings are considered quasi-criminal, so the court maintains a high standard when considering motions for enforcement.
Consider carefully before you take your former spouse to court over a violation of a court order. Judges take enforcement motions seriously, and if you bring an action just because you’re angry, your result may not be what you like. Don’t let your former spouse walk on you, but keep yourself to a high standard of reasonableness.
If your ex is consistently late paying child support or returning your child from their weekend visits, consult your attorney for next steps. Of course, if it’s an isolated incident, a simple reminder call to your ex is appropriate, but if the violation is more than an occasional slip-up, don’t attempt to remedy the situation on your own. The courts take violations of orders seriously, and there are serious penalties associated with not following the court’s directions. If your ex believes the extent of the penalties is an angry ex, then he or she is not likely to shape up. If it’s clear your ex isn’t going to comply, consistently and in a timely manner, with the court’s orders, get your lawyer involved as soon as possible. He or she can advise you whether immediate action is needed or if a little patience is in order. If you ignore a violation for too long, it can be more difficult to enforce the order.
Most people caught up in legal actions “want it over with” quickly. That’s natural and understandable, but going too fast often leads to mistakes. Unless there is a true emergency, take your time and make thoughtful, well-developed decisions.
Although jail time is one of the penalties for violating a court order, it is far from the only one. It is typically reserved for serious and/or repeat offenders, so don’t assume that your ex is going to jail for failing to pay child support on time. In some cases, the court may order your ex to be incarcerated but suspend the sentence subject to his or her complying with the court’s orders in the future. There are also other remedies, including the payment of court costs and legal fees.
If your ex is late returning your children from vacation, don’t complain to your children about it. Ditto with child support payments. Let your kids be kids and work out the adult stuff with your ex (and your lawyer). Your children are probably already having a hard time adjusting to their new life, so they don’t want to have to pass on angry messages to your ex.
Motions for enforcement are highly technical and complex. If they are mishandled, you may not only lose that particular motion, but you may put yourself at a disadvantage for future enforcement actions. Attorneys who are Board Certified in Family Law by the Texas Board of Legal Specialization must maintain a high level of continuing legal education and devote a substantial portion of their practice to Family Law, so they will be in the best position to handle such a motion.
Judges generally do not take kindly to those who consistently flout their orders. However, because the possible penalties for violating a court order include incarceration, it is important that your efforts to compel enforcement be specific and detailed. Because of that high bar, it is essential that you hire an experienced attorney to pursue enforcement on your behalf.