& Courtroom Experience
Enforcement of Family Court Orders
The questions and answers below are not intended to provide legal advice to the readers, but merely to provide basic information. Any reader with legal questions should consult an attorney.
A. Property Division
If I was awarded personal property in my divorce that I have not received, can I still obtain the property?
If the property has not been destroyed or sold and your ex will not voluntarily give you the property, you may need to file a suit to enforce the award of the property.
What if the personal property I was given in the divorce was destroyed or sold by my ex-spouse?
A suit to enforce the division could still be filed, seeking the value of the lost or damaged property, along with attorney’s fees for the enforcement lawsuit.
If there was property that my divorce Decree did not divide, can a court divide it after the divorce?
Yes. If a spouse believes that the court failed to divide property that should have been divided in the divorce, that spouse has two years to file a lawsuit for the court to divide the property. The time period for filing such a lawsuit starts when the other spouse unequivocally denies that the filing spouse owns an interest in the disputed property and communicates that denial to the filing spouse.
Is there a time limit on how long after a divorce is granted that I can recover property awarded to me in a divorce decree?
Generally, two years from the date of the signing of the Decree of Divorce.
What can be done if my divorce Decree awarded retirement/pension funds, but they have not been divided by the retirement company?
The Texas Family Code provides that if an order dividing the retirement benefits (called a Qualified Domestic Relations Order or QDRO) has not been signed by the court when the divorce is finalized, the court retains the right (jurisdiction) to sign such an order to divide the retirement benefits. The signed QDRO must be delivered to the retirement company and approved by such company before they will divide the retirement account.
B. Child Support
If a parent who is ordered to pay child support does not pay, what can be done?
A motion to enforce the child support order can be filed asking the court to hold the obligor (person ordered to pay child support) in contempt.
What is contempt?
Basically, contempt is a finding by a court that a person violated the court’s orders. A contempt finding can result in a fine, ordering the funds owed paid to the oblige (person entitled to receive child support), and/or placing the obligor in county jail for a period of time.
Does the person who violates a court order for child support have to pay the other person’s attorney’s fees in a lawsuit for enforcement of child support?
Generally, yes. The Texas Family Code provides provisions that the violating party be ordered to pay the other party’s attorney’s fees.
What if a parent cannot pay court-ordered child support?
If a parent cannot afford to pay child support, that parent should consider filing a motion to modify their child support obligation. That parent should not delay filing the motion because the court cannot reduce the child support payments for amounts that were due before the motion to modify the child support was filed. Meaning, child support at the original amount will still be accruing and that person could be held in contempt for not paying the child support.
If I cannot make a child support payment in full, should I pay what I can or wait until I can make a full payment?
Of course, the court order will require the full payment each month. However, if you cannot pay your full child support payment, making a payment or a number of smaller payments will show a court that you are making an effort in the event that the other parent files a motion to enforce the child support. Since going to jail for not paying child support is a possibility, consider catching up as quickly as you can and/or filing a motion to modify your child support if your financial circumstances do not appear that they will improve in the future.
If you don’t pay court-ordered child support, can you go to jail?
Yes. A parent’s child support obligation is taken very seriously in Texas and a failure of a parent to provide the court-ordered support can result in that parent going to jail for up to 180 days (or more under certain circumstances). Failing to pay child support can also be a crime under the Texas Penal Code and result in criminal prosecution.
Should I pay the other parent cash for child support?
Generally, paying cash to the other parent is not a recommended way to pay child support. Money orders, checks, or cashier’s checks provide paper documentation of the support payment. However, see the following question and answer.
Can I pay my child support directly to the other parent?
If there is a court order for child support, the paying parent should pay the other parent as directed in the court order. Most Texas court orders direct the child support payments to be made through the Texas State Child Support Disbursement Unit in San Antonio, Texas. A court does not have to give the paying party credit for any payments that do not comply with the court’s orders and can hold that parent in contempt. The short answer is not to pay the other parent directly, make each payment to the location in the court order.
Can child support be withheld by an employer?
Yes. Court-ordered child support can be withheld from wages with an appropriate withholding order signed by the court.
Is there a time limitation on how long child support orders can be enforced?
Yes. A motion to enforce a child support order seeking a finding of contempt must be filed within 2 years of the child becoming an adult or the child support order terminating. If the person seeking to enforce a child support arrearage is not requesting contempt but to confirm the child support arrearage and obtain a judgment for that amount, such an enforcement action must be filed within 10 years of the child becoming an adult or the support order terminating.
Are there any excuses or defenses to failing to pay child support?
Yes. It is a defense if the person asserting that the other person failed to pay child support gave up possession and control of the child for time periods in that exceed the paying party’s court-ordered possession. Further, the parent having the excess possession must have provided actual support to the child during such excess period. Additionally, if the paying party lacked the ability to provide support in the amount ordered, lacked property that could be sold, mortgaged, or pledged to raise funds, attempted unsuccessfully to borrow the money, and did not know of a source of funds to pay the support ordered, contempt of court may be avoided, but the amounts not paid will remain due and owing.
C. Possession and Access
If I was awarded possession time of my child in a court order and my ex (or the party having possession of the child) refuses to let me have the child, what can be done?
The police can enforce a valid court order for possession of a child. However, some police do not wish to be involved in domestic situations or do not know that the law requires them to enforce a valid court order for possession. The parent being denied possession of the child can file a motion to enforce (similar to a motion to enforce child support) their possession and request that the parent violating the court’s order be held in contempt. In extreme cases, that parent may consider requesting that the court modify the rights, duties, and possession periods of the parents to limit the other parent’s ability to deny possession and access.
Can a parent go to jail for refusing the other parent possession of a child?
Yes. Violating a court order can result in a finding of contempt of court and jail time for the offending parent.
Is there a time limitation on how long possession and access orders can be enforced?
Yes. A court can hold a violating party in contempt if the motion to enforce is filed by the sixth month after the date the child becomes an adult or the right to possession or access terminates per the court order.
Can the police enforce a possession order if the other parent refuses to return or deliver the child?
Yes. As stated above, the police can enforce a valid court order for possession of a child. However, some police do not wish to be involved in a domestic situation or do not know that the law requires them to enforce a valid court order for possession.
Are there any excuses or defenses to violating a possession order?
Yes. It is a defense if the person filing the motion to enforce a possession order voluntarily gave up actual possession and control of the child during the time period that parent is complaining that the other parent violated the possession order.
D. Spousal Support
Can a spouse be put in jail for not paying spousal support?
Yes. Failing to pay court-ordered spousal support can result in a finding of contempt of court and jail time.
Is failing to pay temporary spousal support different from failing to pay post-divorce maintenance?
No. Generally, failing to pay temporary spousal support or post-divorce maintenance can result in a finding of contempt of court and jail time.
Can spousal support be withheld by an employer?
Yes. Court-ordered spousal support can be withheld from wages with an appropriate withholding order signed by the court.
What if I cannot pay the court-ordered spousal support?
If a party cannot afford to pay spousal support, that party should consider filing a motion to modify the support obligation. Similar to child support, the party should not delay because the court cannot modify the support payments for amounts that were due before the motion to modify was filed. Thus, the original support will still be accruing and that person could be held in contempt for not paying the support.
Are there any excuses or defenses to failing to pay spousal support?
Yes. If the paying party lacked the ability to provide support in the amount ordered, lacked property that could be sold, mortgaged, or pledged to raise funds, attempted unsuccessfully to borrow the money, and did not know of a source of funds to pay the support ordered, contempt of court may be avoided, but the amounts not paid will remain due and owing.