Since most people have not gone through law school and don’t have experience in the courtroom they generally have the wrong idea when it comes to the enforceability of orders.
Much of what is written in an order is “aspirational” and not truly enforceable.
There are two main types of enforcement, those asking to hold the violator in contempt and those that don’t. When you ask for the violator to be held in contempt you can ask for jail time and you can leverage that request to make sure your attorney’s fees get paid and to make sure whatever the other side is ordered to do, they do.
But most provisions in an order are not enforceable by contempt. It’s actually very difficult to hold someone in contempt because orders holding someone in contempt for violating an order are very often overturned by the appellate court and judges don’t like to be overturned. Accordingly, if the judge has any doubt about whether or not an appellate court will overturn their order they will usually deny the requested contempt. Also, if a court denies an enforcement and refuses to enforce their own orders there is generally no relief available from the court of appeals and Judge’s know this.
For an order to be enforceable by contempt it must be sufficiently specific so that there is no doubt as to what the parties are ordered to do. When applicable, an order must usually state who is ordered to do something, what they are ordered to do, how they are supposed to do it and when are they supposed to do it and where they are supposed to do it.
|Sufficiently language for contempt||Insufficient Language|
|1. Bob smith is ordered to pay $500 in child support on the first of each month by mailing the funds to 123 Child Support Lane, Collection, Texas, 77573.
a. Who– Bob Smith
b. What– pay $100
c. How/where– mail to address
d. When– first of each month
2. Mary Smith is ordered to surrender the children at 6:00 pm on the first Friday of each month at her residence located at 1234 Possession Drive, Violation Texas 77573.
a. Who-Mary Smith
b. What– Surrender children
c. How/where– her residence
d. When– 6:00 pm first Friday of each month
|1. Parties are prohibited from making disparaging remarks about each other in front of the children.
a. Unclear as to what “disparaging remarks” are.
2. Mary Smith is to surrender the children at times mutually agreed to
a. If not exact date/time specified then possession order is not enforceable by contempt
Some enforcements that can be enforced by contempt are more difficult than others to enforce. Child support enforcements which are brought when support is not paid pursuant to an order are relatively easy to bring forward because certain evidentiary rules make it very easy to prove these suits. Typically one needs to only bring a payment record which shows missed payments and little more is needed.
Possession and access orders are by contrast very difficult to prove because there is not a “possession/access record” which easily shows a missed violation. Rather it is on the individual bringing the suit to show that the respondent intentionally refused to release the child on a given day and time and if there is not a time/date stamped audio/video recording of the violation that can be difficult.
Also, enforcements are separate law suits, they are not merely a motion that is filed in a divorce or modification suit. They typically require a separate fee agreement and retainer. Given the increased cost of filing the new suit and the difficulty of prevailing on an enforcement it is necessary to have a long detailed conversation with your attorney before moving forward.
For more technical information on enforcement click the link below: