There are many situations in which someone may want to enforce the terms of a divorce decree. An ex-spouse may have missed child support payments. They may keep the children longer and drop them off later than they are supposed to. Perhaps the Divorce Decree required one person to do something that they didn’t do. To make the other person comply with the terms of the Divorce Decree requires an Enforcement action.
How do I enforce the terms of the Decree?
To enforce the provisions of a decree and often the underlying settlement agreement, the proper mechanism is through the filing of a Motion for Enforcement. Although it is called a “Motion” it actually works more like filing a brand-new Petition or a new lawsuit. In the motion, one must lay out each violation of the Decree or underlying settlement agreement specifically. The specific facts that must be outlined in each violation depend on what the nature of the violation entails. For example, to specifically outline the facts for a violation of a child support order, one would need to set out the language in the decree which shows the order of support and details the manner and method for payment. If the person failed to pay support, the violation would need to specifically include the amount owed as provided in the order, the amount paid, and the amount of arrearages. A failure to properly and specifically plead the violation may result in the violation as alleged being tossed for its defectiveness. If the enforcement action is for violations of possession and access, each violation pleaded would need to include: the date; place; and, if applicable, the time of each occasion of the other person’s failure to comply with the order.
What relief can I ask the Court for?
Again, this depends on what one provisions of the decree and/or underlying agreement that one is trying to enforce. Generally speaking, most enforcement motions seek contempt remedies. Contempt is both criminal and civil in nature. However, if one is asking for a sentence of more than 6 months for criminal contempt, the individual against whom the enforcement is sought will be entitled to a jury trial (remember that thing called the Constitution?). Therefore, in practice, 6 months and concurrent sentences appears to be the normal relief requested to get around the jury trial requirement and proceed with a bench trial. Civil contempt generally means to ask the Court to hold a person in contempt with a suspended sentence until they comply with the order. One should also ask for non-contempt remedies. Many lawyers forget this and fail to do so in their Motions for Enforcement. The effect is that if a violation is pleaded defectively, or if the Court finds no contempt for the violations that are pleaded – then by failing to ask the court for remedies other than contempt – the matter is over. There are no other remedies that can be awarded and the entire Motion for Enforcement will fail. It is always good practice for ask for non-contempt remedies as well. These may include seeking monetary damages, and other causes of action such as breach of contract. The value of a Motion for Enforcement is that one can ask for virtually anything as a non-contempt remedy – except having someone tarred and feathered or locked in a public stockade (remember – the whole Constitution thing). A Motion for Enforcement is the time to ask for any possible remedy. And as a general note, one should always ask for Attorney’s fees in the Motion for Enforcement as well.
At Skillern Firm, our Houston Family Lawyers have counseled and represented numerous people seeking to enforce a Divorce Decree and/or underlying agreement. We often see instances where one party to a divorce fails to perform their child support or possession and access obligations. Or at times fail to pay what is owed to the other under the terms of the Divorce Decree and/or underlying order.
If you are facing a situation that requires an enforcement, or perhaps another has served a Motion for Enforcement on you – you need to speak with an experienced Family Lawyer. The lawyers at the Skillern Firm, led by Board Certified Family Law Attorney Matthew A. Skillern, can help you navigate this issue and answer any questions that you may have. If you would like to speak to someone about your particular situation, call our office at (713) 229-8855 and speak to one of our experienced Family Lawyers. We are here to help you as we have helped many others.
* At Skillern Firm, we pride ourselves on the results we have achieved for those we help. We stand ready to assist you with any of your Family Law needs. Contact us today. https://www.skillernfirm.com/