In the legal system, a divorce decree is a court order. The enforcement of a divorce decree requires a separate legal proceeding whereby the court is asked to affirm a prior court order it made that has not been followed. A court can enforce temporary decrees as well as final divorce decrees.
For example, the court may award spousal support of $500 per month in June of a particular year. If by December of that year, the person ordered to pay the support has not, in fact, paid any spousal support, the person not receiving payments can go back to court and get a court to enforce the order and make the other party pay. The unpaid party would be enforcing their original decree, that is, the award of $500 per month in spousal support.
How Is a Decree Enforced?
A final decree of divorce in family law is usually enforced by going back to the court that issued the decree to seek enforcement of it.
There are a number of issues that might lead a divorced person to seek enforcement. For example, a person’s ex-spouse might not have followed through on issues related to division of property.
A person’s ex-spouse may not have paid off debts for which they were ordered to take responsibility. They may have refused to complete the process of transferring title to assets, such as real property, that the judge has awarded to the person and not their ex.
Or an ex-spouse may have fallen behind on their alimony and child support payments. They may have violated their court-ordered parenting time as provided in the child custody and visitation order.
Before a person tries to enforce the provisions of their divorce decree, they want to read the document carefully and make sure they understand the obligations of each of the parties, their own and those of their ex. Then, the person can identify the specific requirements their ex has failed to comply with. As part of this review, of course, a person wants to make sure that they have done what the decree requires of them.
The next step is to gather any evidence a person may have regarding their ex’s lack of compliance with the divorce decree. For example, the person wants to gather any financial record and anything else in writing that supports their case.
A person may want to consult their family law attorney at this point. They could help a person decide which records need to be located to support a possible enforcement action in court.
A person may think it would be helpful to talk to their ex themselves. If that is not a comfortable or productive alternative, the person may want to talk to their family law attorney about their options.
The first step may well be having a person’s lawyer attempt to work out an amicable resolution to the problem. Their attorney would simply remind the person’s ex about the decree and let them know that the person intends to go to court to enforce their rights if the ex does not take steps to resolve the situation.
Hopefully, a person’s ex would realize that it would be costly and unpleasant to go back to court and defend their lack of compliance to a judge. The ex may have some compelling reason for their non-compliance and may need to work out a new plan for some issues. Sometimes, a discussion between a person’s lawyer and their ex can bring results.
What Happens if I Go to Court to Enforce a Decree?
If efforts at amicable dispute resolution are not successful, a person may feel ready to file their motion for the enforcement of the divorce decree. A motion for enforcement is a technical legal document.
The evidence supporting it and any other other documentation required by the court to be submitted with the form must be attached to the motion. An attorney would prepare it, or a person might file it themselves if they feel competent to do that.
It is important to note that a divorced person may be considered to be in contempt of court if they have not made child support or spousal support payments as required by their divorce decree. Also, they may be in contempt of court if they have not complied with specified visitation and custody agreements.
Once a person files and serves their motion for enforcement, their ex has the opportunity to oppose it. The court then sets a date for a hearing on the motion.
At the hearing, the judge gives each side the opportunity to present their case and their arguments. The judge may ask questions related to the motion that has been filed.
In addition, both a person and their ex-spouse are given an opportunity to present their individual arguments. They also have the opportunity to present their supporting documentation concerning the other person’s failure to follow the divorce decree.
In the end, the judge makes a decision based on a consideration of all the evidence and the law, as well as the presentations of the parties. A person who makes such a motion may be entitled to recover their attorney’s fees if they prevail.
In What Kind of Situations Is Enforcement of a Divorce Decree Necessary?
The enforcement of a divorce decree may become necessary in family law cases involving any of the following issues:
- Property division in a divorce: As explained above, if one spouse has failed to fulfill their obligations regarding the division of property as directed in a divorce decree, the other party can file a motion to enforce the judgment and compel their ex-spouse to do what is required;
- Child Support: Courts take obligations to pay child support very seriously. A person who fails to pay as ordered can expect a court to order enforcement of the order unless they make an application to reduce the amount or end the obligation to pay;
- Child Custody & Visitation: Like the obligation to pay child support, the obligation to respect child custody and visitation plans that have been ordered by a court in a divorce case is one that courts take very seriously. A court can be expected to order enforcement unless a person can show a compelling change in circumstances that would justify changing any existing plan or schedule;
- Spousal Support: Of course, if the court has ordered one spouse to pay spousal support or alimony to the other, a spouse who has not paid as ordered can expect the court to enforce its order. To change the obligation, the party ordered to pay would have to go to court and show a compelling reason to change the amount or end the obligation.
- If they have not done this and have simply failed to pay, they may find themselves subject to a court order of enforcement.
Should I Consult With an Attorney to Have a Family Decree Enforced?
Speaking with a divorce lawyer will enable you to understand your rights and to pursue any possible remedies you may have if your ex has failed to respect a final decree of divorce.
LegalMatch.com can connect you to a family lawyer who knows how to make a motion for enforcement, which documents to submit to the court, and how best to argue your side of the situation.
