Friday, July 29, 2011

"Motion to Enforce" a Texas Court Order About Property

A final divorce decree will have provisions in the court order which relate to division of property and debts. 

When one of the parties does not follow through in obeying the court order, the other “innocent” party may choose to file a motion with the court. This is called a “Motion for Enforcement” and is a request for the court to hear the case and enter new orders to enforce those particular provisions that are in issue.

 

An ex-spouse may neglect to pay a debt as ordered, may choose not to vacate, sell or maintain property as s/he was ordered to do, refuse to cooperate in property transfer or help him/herself to more than his/her share of a joint asset.   These are all situations in which a Motion to Enforce may be filed by the ex-spouse.  

What are your options if your ex spouse hasn’t followed through?  You can attempt to discuss it directly (not recommended if your relationship is volitile) .  If further action is necessary, you may decide to take a copy of the final divorce decree and any evidence with you to a family law attorney’s office for a consultation.  That attorney will help you assess your case, and possibly offer alternatives that are less expensive for you than filing an immediate suit, such as writing a certified letter from the law firm or attending mediation.   If you decide that you would like to file a suit, the attorney will explain the potential cost and time investment that your case will require.

 

If you are served with a lawsuit regarding enforcement, you will have a certain number of days in which you must respond by filing your answer. If you do not do so, a judgment will most likely be taken against you.   Even if you cannot pay the judgment now, it can follow you for several years, and collection efforts may be initiated against you.  See an attorney right away, before that happens.

 

If you see “trouble ahead”, you can also try to minimize problems by dealing with the situation now.  For instance, if you know that you have been unable to follow court orders because you have become ill, or lost your job.

 

Kalish Law Office has been serving family law clients since 1984.  www.kalishlawtexas.com  The Woodlands, Texas

Saturday, July 23, 2011

When Your ex Files a Contempt Suit Against You

Last time, we discussed child support/visitation contempt and enforcement suits from the point-of-view of the filing party. This time we will present the other perspective.

 

If you are served with this type of suit, first of all, remain calm.  DO NOT call, email or write your ex in anger. This can come back to haunt you later on.

 

Secondly, read the suit and the allegations very carefully. Do they have ANY merit at all?  Go through each allegation one at a time, carefully. Make a separate list with your response to each allegation.  

 

If you have evidence that the allegations are untrue, get your proof together. Proof of child support that you have paid would include a print-out from the Texas Attorney General Child Support Division and cancelled checks.  .  Depending on the allegations, you may also need to gather proof of payment of medical bills or insurance premiums, copies of insurance policies, proof of delivery of certified mail or email delivery confirmation.

 

For disputes involving visitation, calendars, diaries, dated photos and other evidence may be helpful.

 

Although it is difficult to keep emotions out of the situation, don’t let your emotions make the situation worse.  You do not want to engage in a bitter fight, which can be expensive, upsetting (especially to the children) and bring up a lot of old emotional baggage. 

 

Be sure to respond properly and on time by filing a proper answer.  DO NOT IGNORE the suit. If you do, a judgment can be taken against you.      

Read all the papers that are included.  The citation will tell you when your response is due and there may be additional papers which give you information about the scheduling of the case or state a requirement for mediation.

 

A child support attorney can assist you with understanding the law relating to enforcement and contempt actions, can defend you in the suit and help you understand your legal rights.

 

Kalish Law Office www.kalishlawtexas.com

Friday, July 15, 2011

Finding Your Ex in Contempt of a Court Order Involving Children

What is contempt?

Contempt is an action that can be used by the court to enforce an order, or to punish disobedience.   Contempt can be used by the court “on its own” (Judge says, “I am going to find you in contempt for your misbehavior in this courtroom”) or can be requested by a party who files a motion with the court (a parent files a suit against the other parent for non-payment of child support and repeated visitation violations).

 

I could write for several pages about contempt in general. For this blog post, let’s narrow it down to situations in which contempt is filed by one parent against another.

 

If are a party to a court order that is being violated (but not by you!), you may have already wondered about how this works.

 

Family law contempt cases relating to children typically involve one of the following:  

1)      A party has not paid child support or medical support as it was ordered in the decree

2)      A party is not following the visitation schedule as it was ordered in the decree, especially if access to the children is being withheld.

3)      A party is not following restrictions placed upon him/her by court order that involve health or safety of the children (drinking before or during visitation times).

 

 

If you want to succeed on a motion for contempt, there are a few things you are going to need:

 

1)      Actual instances of contempt- Filing a motion for contempt with nothing but anger or desire for vengeance to back it up is not going to work for you. You will spend time and money; negatively affect your children, waste court time and anger the judge. 

2)      Very good records- In a contempt action, you need to have copies of documents that are relevant and support your case, and an accurate list of when contempt occurred.   Examples of documents: A certified copy of the final court order that s/he has violated (see our recent blog about how and why to get one of these- June 21, 2011);   emails or letters showing your ex’s disregard of the court order, photos, certified mail receipts showing his/her receipt of medical bills that went unpaid, your diary or logs of the months child support was unpaid, a copy of child support payments from the Child Support Division.

3)      A healthy attitude- An attitude of hatred or uncontrollable anger that drives the case and comes across to a judge will not help you.   An attitude of doing what’s best for your child, keeping your child safe, getting money to help support your child-  this will definitely help you.

4)      Organization: Here is a tip that can save you time and money:  get really organized before you go to an attorney’s office for a consult.  Have a list prepared of all the times that the court order has been violated.  It is a good idea to keep a journal or computer log that you can enter information into regularly.   Have your documents in a folder, organized by date. 

 


A Motion for Contempt is filed along with (and is part of) a “Motion to Enforce”.  This means that the judge is asked to enforce the prior order that is not being followed AND is being asked to punish the person who is not following the order by making him/her pay back sue child support, if any, pay attorney’s fees, and/or serve jail time. Because the result can be very severe and can result in a loss of a person’s liberty (even for a short time), the standard of proof is strict.  The judge may decline to find someone in contempt, but still enforce the order that is requested (such as payment of child support).   

 

A Motion to Enforce can be filed without a Motion for Contempt and very often it is.  The enforcement motion filed alone can save legal fees and have the intended result.  In cases where a person has to be taken back to court again and again, a Motion for Contempt is more appropriate.  It is also appropriate in cases where a party’s misbehavior is so terrible that it is a risk to the health and safety of the child. 
 

A consultation with a family law attorney can help you determine your options and get legal advice to help you protect your legal rights.

 

Kalish Law Office; The Woodlands, Texas

“Passionate, Professional and Personal. We Make the Difference”

Friday, July 8, 2011

Proof of Lawful Presence in U.S. Required From Driver's License Applicants

 If you cannot prove you are in the U.S. legally, you will not be able to renew your Texas Driver's License.

On June 28, 2011, a law relating to requirements for obtaining or renewing a Texas Driver's License was approved by the Texas Legislature.

This law is a further clarification of a 2008 law, and policies and procedures that the Texas DPS has been using since the 2008 law.

Those applicants who are U.S. citizens and already have their social security numbers on file with the DPS will probably not be affected by these changes. 

Non-citizens, such as temporary visitors, will need to show that they are here legally.  This means that their visas have not expired. For instance if someone came in to the U.S. legally and can prove this, but has overstayed and is on an expired visa, they would be denied.

The law could be a problem for those who are here legally, but can't prove it.  For instance, persons born in the U.S. but delivered by a midwife, or those in specific situations that require clerks to view documents and interpret immigration law.  

There is also a concern that this new law may result in more people driving without a current license and without liability insurance.