Court orders can establish visitation rights, child custody, and child support. During a divorce, court orders can also order the division of parties’ property. Court orders are required in family law cases in order to make the parties’ agreement or court renditions enforceable. If the parties come to an agreement about child support, for example, but do not have a court order then the party who is supposed to receive child support cannot take the other party to court to require the continuation of the agreed child support payments. The party entitled to child support, in this example, would need a court Order to make the other party pay child support.
Court orders should ideally help decrease conflicts between parties because the Order provides parties with clear guidelines. Unfortunately, not all parties comply with court orders. A parent might stop paying child support. Another parent might keep the child from the other parent. Sometimes parties do not turn over certain property during a divorce. This blog will discuss what a party should do if the other party does not comply with court orders.
What is a court order?
An Order is a court’s written directive to do certain things, such as abide by a set possession schedule or sell a house, and to not do other things, such as allow a sex offender to live with a child or talk poorly about the other parent in front of the child. When a party does not comply with an Order, the party is going against what the court ordered them to do or not do. For this reason, courts do not look favorably on parties who purposefully do not comply with an Order.
What are ways parties do not comply with court orders when children are involved?
If a case involves children, the Order will likely include a section on child custody, visitation, and child support. In Texas, child custody is called conservatorship and visitation is referred to as possession and access.
Conservatorship
Conservatorship establishes the parties’ rights and duties in relation to the child in the case. The three rights that attorneys and parties place the most importance on are called heads, meds, and eds. Heads refers to a parent’s right to make psychological and psychiatric decisions regarding the child. Meds involves a parent’s right to make invasive, non-emergency medical decisions for the child. Finally, eds addresses a parent’s right to make educational decisions in connection with the child. A court order will establish whether these rights are the exclusive right of one parent, the independent right of both parents, or a joint right where the parents must come to a mutual agreement.
Once the court establishes parents’ conservatorship rights, the parents must follow the court order. For example, if the court order states that a father has the exclusive right to make invasive, non-emergency medical decisions regarding the child, the mother cannot schedule a surgery for the child or have the child get vaccines without the father’s consent. Another common example is when the parents have a right, subject to the agreement of the other parent conservator, to make educational decisions for the child. A parent would be violating a court order if they went to the child’s school and changed the child’s classes. The parent would also violate the court order if they withdrew the child from gifted and talented or special education programs. It is important that parties thoroughly read the conservatorship section of their court order to ensure that they are not violating a court order when making decisions regarding their children.
Possession and Access
In cases involving children, both parents will likely have what is called a Possession and Access schedule. A Possession and Access schedule lists each party’s designated time with the children. A party can violate an Order if they do not follow the schedule set by the Order. For example, if an Order states that the father is supposed to have possession of the child after school on the first Friday of each month, the mother would be violating the order if she refuses to allow the father to take possession of the child. This could happen if the mother picked the child up from school before the father had the opportunity and keep the child during the father’s weekend. Another example is not exchanging the child for holidays as outlined in the parties’ Order. If a father had Thanksgiving last year and the mother is supposed to have Thanksgiving this year, the father would be violating the Order if he kept the child over Thanksgiving break.
However, it is important to note, that if both parties agree to alternative periods of possession and access than the parties are not violating the Order. A parent who consents to the other parent keeping the child an extra weekend or switching holidays would not be violating the Order because both parties agreed to the modification. In cases such as these, the parties do not need to notify the Court or do anything other than agree. If you are concerned that the other parent might accuse you of withholding the child, you can get this agreement in writing, such as a text message or email, as a means of protecting yourself against possible future lawsuits concerning the child.
Child Support
In most cases, a Court orders one parent to pay child support through the Texas State Disbursement Unit unless the parties come to an agreement otherwise. The party obligated to pay child support typically has the child support amount taken from their paycheck. The child support money goes to the State Disbursement Unit first before being sent to the party who receives the child support under a court order. A party should use the State Disbursement Unit to pay child support because the State Disbursement Unit keeps track of the money a party pays in child support, which makes it harder for the other party to argue that they were not receiving child support.
An Order will clearly state the amount of child support a parent is obligated to pay each month to the other party. Additionally, the parent will also be obligated to either pay for the child’s health and dental insurance, reimburse the other parent for paying for the child’s insurance, or reimburse the State of Texas for the child’s insurance if the child is receiving public assistance. A parent does not have to ensure that their child has vision insurance. If the parent paying child support is also covering the child’s health and dental insurance, that parent’s child support obligation will be decreased. The cap for health insurance is 9 percent of the parent’s gross income and 1.5 percent of the parent’s gross income for dental insurance.
The parent ordered to pay child support would violate the Order if they do not pay their child support. In many cases, parents pay their child support through what is called an Income Withholding Order. Your attorney can file an Income Withholding Order on your behalf. An Income Withholding Order tells the parent’s employer to take the child support money out of the parent’s paycheck and to send the money to the State Disbursement Unit so that payments can be tracked and accounted for.
However, there is a cap on how much an employer can take out of a person’s paycheck for child support. An employer cannot take out more than 50 percent of a parent’s paycheck to pay child support. This issue comes up most times in situations where the parent has multiple jobs at the same time and none of the jobs have a salary that would satisfy the parent’s full child support obligation.
In some instances, a parent does not have an Income Withholding Order so their employer is not taking money out of their paycheck to satisfy their child support obligation. It is important to note that this does not mean that the parent does not have to pay child support. Rather, many orders have language that state a parent must pay the State Disbursement Unit directly in instances where an Income Withholding Order is not in effect. Child support payors can oftentimes set up direct withdraws from their banking accounts if they have to pay the State Disbursement Unit directly. A parent would be violating their Order if they do not make sure they are paying the court ordered child support to the other parent either through an Income Withholding Order or by paying the State Disbursement Unit directly themselves.
Oftentimes, an Order will state that a party will not get child support credit for making informal payments to the other parent. This comes up in situations where one parent pays the other parent directly and not through the Office of Attorney General. It is not recommended to make direct, informal payments to the other party because the other party can possibly make the accusation that the parent obligated to pay child support is not paying their child support. When child support goes through the State Disbursement Unit, the State of Texas keeps track of payments made by the parent. Paying through the State Disbursement Unit will oftentimes help a parent avoid unnecessary confusion and conflict with the other parent.
Is it possible to violate an Order in relation to property?
In divorce cases, a person can also violate an Order in terms of property division if they do not follow the terms laid out in the Order. During a divorce, the parties can either agree to how to divide their property or the Court will order the parties to divide the property in a certain way. The Final Decree of Divorce will state who will get each piece of property and how to transfer the property, if necessary. Parties must ensure that they follow the Order when dividing property and that they take all the necessary steps to transfer ownership of the property, if necessary, as ordered by the Court.
When issues arise in regards to property division it oftentimes involves the larger assets in the parties’ estates such as homes, retirement accounts, or large amounts of money. Sometimes an Order will state that the parties shall sell their home, but one party does not want to sell the home so they refuse to engage in the selling process and possibly refuse to leave the house. In these cases, that person would be violating the Order because they are not working with the other party to sell the house and they are not leaving the property to allow the home to be sold. In other cases, a party is ordered to pay the other party a certain amount of money by a date certain. If the party does not pay the money by the date listed in the Order, that party would be violating the Order.
What should I do if a party violate an Order?
When a party violates an Order, we recommend reaching out to an attorney and asking for what is called an Enforcement. An Enforcement is a lawsuit in which you are asking the Court to enforce your Order. The attorney will have to show the Court that the Order states that the party is obligated to do something under the prior order and that party is failing to abide by the Order.
It is important to start gathering evidence of the other party’s failure to comply with the Order as soon as possible after the party starts violating the Order. For example, if the parent withholds the child and does not allow the other parent to exercise their possession of the child, the parent should send a message to the parent withholding the child stating that they are at the location where the exchange of the child is ordered to take place at the time the Order states and that the other parent is not present. Furthermore, the parent can take a picture with a timestamp showing that they are at the location at the ordered time and the other parent is not present. Remember, even if the other party is not abiding by the Order, this does not mean that you should stop following the Order. In this example, you would continue following the Order by showing up at the exchange location at the designated time repeatedly.
If an Enforcement case is successful, the Court would require the party to abide by the Order and possibly take additional measures to ensure future compliance such as fining the violating party, ordering the violating party to pay the other party’s attorney’s fees, or, possibly, even ordering jail time. A party should wait long enough to gather sufficient evidence of violations before filing an Enforcement case, but not wait too long, especially if the violations involve possession and access or conservatorship. If a party moves too quickly, they might not have gathered enough evidence of violations to show that the party is not following the Order. However, if the party waits too long to file an Enforcement and allows the other parent to keep the child or make decisions for the child for years, this might weaken their Enforcement case. An attorney can help you navigate situations when the other party is not following the Order and provide you guidance on when to file an Enforcement case