Enforcement of Orders
A motion for enforcement may be filed to enforce a divorce decree or a child support, child custody or visitation order. In an enforcement action the movant is the person who files the motion and the respondent is the person who has allegedly violated the court’s order.
A party affected by a divorce decree which required the division of property may file a suit to enforce the decree. The party against whom enforcement is sought has a right to receive notice of the suit and must file a written answer.
A court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment because judges are unwilling to rewrite the terms of a decree or in the case of settlements, second guess the agreement of the parties. An order to enforce the division of property is limited to an order to assist in the implementation of or clarification of the prior order and may not alter or change the substantive division of property. If an order amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce or annulment, it is unenforceable.
If a party fails to deliver property pursuant to a decree of divorce or annulment and delivery of property awarded in the decree is no longer an adequate remedy, the court may render a money judgment for the damages against the party who failed to comply with the decree. If a party did not receive payments of money as awarded in the decree of divorce or annulment, the court may render judgment against the defaulting party in the amount of unpaid payments. In addition to a money judgment, all other relief available under the law may be sought against the defaulting party. Additionally, a money judgment rendered in connection with the failure to comply with the terms of a decree of divorce or annulment may be enforced in the same manner as any other judgment for debt.
Certain information must be contained in every motion for enforcement of child support, child custody, and visitation. For this reason, it is very important to keep accurate records. The motion must be signed by the movant or the movant’s attorney and must state:
- the provision of the order which has allegedly been violated;
- how the respondent has allegedly violated that provision; and
- the relief sought by the movant.
In the case of a motion to enforce child support, in addition to the above, the motion must also state:
- the amount owed as required by the order, the amount paid, if any, and the amount of arrearages; and
- if contempt is requested, the portion of the order allegedly violated and for each date of alleged contempt, the amount due and the amount paid, if any.
A motion for enforcement of child support may also include as an attachment a record of child support payments maintained by the local or state child support registry.
A respondent has certain affirmative defenses which he may plead in enforcement actions. An affirmative defense is a matter asserted by a defendant or respondent which, assuming the complaint is true, is a defense to it.
In actions for enforcement of custody or visitation, the respondent may plead as an affirmative defense that the movant voluntarily relinquished actual possession and control of the child and that the voluntary relinquishment occurred during a time encompassed by the court ordered periods during which the respondent is alleged to have interfered. In actions for enforcement of child support, the affirmative defenses available to a respondent include:
- the movant’s voluntary relinquishment to the respondent actual possession and control of the child and that the relinquishment occurred for a time period in excess of any court-ordered periods of possession of and access to the child and that the respondent actually supported the child during those periods;
- lack of the ability to provide support in the amount ordered;
- lack of property which could be sold, mortgaged, or otherwise pledged as collateral to obtain a loan to make the required support payments;
- unsuccessful attempts to borrow money in order to make the required support payments; and
- lack of knowledge of a source from which the money to make the required support payments could have been borrowed or legally obtained.
If a court finds that party has been denied possession of or access to a child, it may order additional periods of visitation to compensate for the denial of court ordered possession or access. The additional periods of possession or access must be of the same type and duration of the possession or access which was denied, may include weekend, holiday, and summer possession or access, and must occur on or before the second anniversary of the court’s finding that possession or access has been denied. Furthermore, the person denied possession or access has the exclusive right to decide the time of the additional visitation.
In the case of an action for the enforcement of child support, a respondent may request reimbursement for any support actually paid during the time subject to an affirmative defense. The request for reimbursement may be in the form of a counterclaim or offset against the claim of the movant.
A child support lien arises by operation of law against real and personal property of an obligor for all amounts of child support due and owing, including any accrued interest, regardless of whether the amounts due have been determined by a court. This means that the obligee may make collections efforts against the obligor by having the obligor’s real or personal property seized and liquidated in order to satisfy the child support lien. This process is very complicated and therefore, is best handled by an attorney.
Depending on the severity of the violation, it may not be advisable to seek enforcement. However, don’t just assume that you don’t have a case. Seek the advice of an experience attorney to learn what your rights you actually have.