Enforce a Divorce Decree

The divorce decree is the end of your marriage. It is also the beginning of the post-divorce relationship with your ex-spouse. The decree is a contract with both parties' responsibilities spelled out. This is especially true if you have children and will be entering in a co-parenting alliance that can last for decades. Knowledge of your rights and duties, as well as a well-crafted decree, are your best tools for navigating your new life.

Steps

Preparing to Enforce Your Divorce Decree

1. Categorize the violation. The responsibilities in a divorce decree fall into three general categories: child custody and visitation, property division and financial promises, and child support. You need to be able to fit your complaint into one of these categories before you can ask the court for assistance.
2. Examine your own motives. The emotions that drove a divorce can linger for months, even years. Ex-spouses can be tempted to use the requirements of the decree as a way to control or punish one another. As actress Carrie Fisher said, "Resentment is the poison you swallow hoping the other person will die." While you are trying to enforce a provision of the divorce decree, make sure you are not violating it yourself while you are seeking reprisal.
   • It is never right to withhold contact with the children because of unpaid child support.
   • It is never right to destroy or damage property instead of turning it over.
   • It is never right to file frivolous enforcement motions to harass your ex-spouse.
3. Assemble documentation. Your appeal to the court to enforce the divorce decree will have to be based on a material breach of the terms of the divorce. The more documentation you can assemble, even a diary with dates and places, the easier it will be to prepare your court documents. At a minimum, you will need a copy of your divorce decree. If you kept any documents, including notes and spreadsheets that you relied on during the settlement negotiations, these can be very useful. Another good resource is a transcript of the court proceedings if your case went to trial.

Enforcing Child Support

1. Contact your local child support enforcement agency. Every state has an agency that is tasked with enforcing child support orders. You will need to apply for assistance and provide documents about your marriage, divorce, and children. Between 1975 and 2012, these agencies increased child support compliance from $1 billion per year to over $27 billion per year.
   • This is a cost-effective solution for the custodial parent. The agencies have access to government resources to locate your ex-spouse and find out information about employment, government benefits, and other assets that can be garnished for child support. The agency also has the power to issue arrest warrants for chronically uncooperative debtors.
   • Keep in mind that the agency and its lawyers will be acting to enforce the law, not to represent you and your wishes. Most of the time you will be in agreement, but not always.
   • If you receive public assistance, including Temporary Aid for Needy Families (TANF), participation in child support enforcement may not be optional. You may be required to assign your child support rights to the state as reimbursement for your assistance payments.
   • You will be charged a fee for this service. Fees generally range from a minimum service fee of $25 per year to 4 percent of money collected.
2. Hire a private attorney. You have an absolute right to hire an attorney and file a private child support enforcement case against the non-custodial spouse. Your attorney can use the power of the court to obtain employment and financial information and set up income withholding orders and orders to levy tax refunds and other benefits.
3. Understand the limits of child support enforcement. Whether you work with the state or a private attorney, there are limits to what you can do to collect. Limits vary by state, but under the law, the gross amount of all income withholding orders cannot exceed 65 percent of the payor's disposable income after taxes.
   • Disposable income does not mean after paying their own rent or utilities, it means after federal, state, FICA, and other mandatory deductions.
   • This does not mean you get 65 percent of his paycheck. Other orders including tax garnishments and child support orders from previous marriages take first priority.
   • If your ex-spouse is evading service of process and remaining willfully unemployed, child support enforcement can be a long and frustrating process.

Enforcing Child Visitation Orders

1. Keep a parenting time journal. This is your first and best evidence if your case ends up back in court. On a calendar or notebook, write down every time you see your children and if there were any problems with the child exchange.
2. Review your parenting plan. The decree is a contract, and like most contracts, enforcement gets difficult when the parties disagree. When you are first divorced, you may believe that you and your ex-spouse will cooperate on behalf of your children. As lives change, so do attitudes. Review your parenting plan in detail and understand exactly what parenting time you are entitled to. Provisions that may have seemed overly detailed or even amusing at the time, such as, "Defendant will pick up children between 3 p.m. and 4 p.m. on the first Monday after the last day of school for a 15-day extended visitation and return children no later than 6 p.m. on the fifteenth day," may now be vitally important.
3. Send the custodial parent a demand letter. If your ex-spouse has been denying you the visitation spelled out in the decree, your first step is a demand letter. This puts the custodial parent on notice that, per the decree, you will be picking up the children and what your next action will be for non-compliance.
   • Keep your tone neutral and business-like. Include the divorce court case number, date, and the part of the parenting plan you are looking to enforce. This letter may end up being evidence. Do not write anything you would not be willing to read in open court.
   • Do not rely on emails and texts while you are demanding visitation. You need to put it in writing in anticipation of taking the custodial parent to court.
   • If your ex-spouse continues to refuse, you can file a motion for contempt to enforce the visitation orders or you can file for a change of custody.

Enforcing Property and Financial Agreements

1. Review your divorce decree. If you have to go back to court, you will be required to allege your ex-spouse's violations of the property agreement in specific detail. If an action was required to be completed by a certain date, for example, completing a deed or delivering an item of furniture, you cannot move to enforce it until after the date has expired.
   • Some decrees have a built-in self-help mechanism. For example, if your former spouse refuses to meet with you to sign a deed in your favor, your decree may suffice to transfer ownership. Consult with an attorney to discuss what you might be able to do on your own without going back to court.
   • Choose your battles. Motions to enforce property settlements are not always clear-cut and easy. They are a significant investment of your time and peace of mind. Decide if you are willing to spend time, money, vacation time, and energy to recover property.
2. Send a demand letter. A business-like demand letter that references the court case number, date, and specific section of the settlement is your first step in enforcing the agreement.
   • Address the letter to your ex-spouse and include a concise statement of what you want. For example, "In our property settlement in case number _____, dated _____, you agreed to __________________ (sign a deed, deliver furniture, vacate property, pay a debt) by ________ (date.) As of _________ (date), you haven't complied."
   • Finish up with a statement that you are ready to take her back to court to enforce the agreement. Finish the letter with your contact information.
   • Send it by certified mail so you have proof that it was delivered.
3. File a motion to enforce the property settlement. You can hire an attorney or many courts have self-help options. You must use the family court system to enforce a divorce decree. If you try to go to civil or small claims court, the case will be dismissed or transferred to family court.

Filing a Motion for Contempt

1. Define your claims. Your claims must be legally enforceable. You can't use the contempt framework to punish your ex-spouse. You can only use it to enforce the requirements and responsibilities of your divorce decree. You also can't use the contempt process to change your agreement with your ex-spouse. This is not the place to increase child support, change custody, claim alimony, or get more property. That is a separate legal procedure.
2. Prepare the forms. A contempt motion is fairly straight forward. Many courts have fill in the blanks forms either available for download or a small fee. The motion must identify the court, the case number, the names of both parties, the date of the decree, the date of your demand letters, and details of what the other party is refusing to do. It must be signed by you. Blue ink is preferred to show it is original.
   • You will attach a copy of your divorce decree, parenting plan, and property settlement. You can also attach copies of your demand letters.
3. File your motion. You will generally file your motion in the same court that granted your divorce. If both you and your ex-spouse have moved, you should consult with an attorney. There may be other requirements to file in courts outside the original jurisdiction. If you do not do it properly, your case will be dismissed.
   • There may be a fee for filing the contempt motion. If you had a court order waiving the filing fees in the original divorce, it may also apply for post-decree motions or you may have to apply again. Ask the court clerk how best to proceed.
4. Serve the motion on your ex-spouse. The motion cannot be granted until your spouse receives notice of the hearing. You can either deliver the documents to the sheriff in the county for your ex lives or hire a private process server.
   • If your former spouse had an attorney in the divorce, your ex and his attorney may agree to waive personal service and accept the papers directly from you.
   • Personal service is required because contempt filings could result in fines or jail time.
5. Wait out the response period. After your former spouse is personally served, there is a response time, usually between 10 and 20 days. During this time, your ex can file a written response and file any counter-claims he may have. Expect to be accused of interfering with visitation, withholding property, and failing to pay debts.
   • If these counter-claims concern you, consult with a family law attorney. Otherwise, gather your documentation to show that you have complied with the divorce decree.
6. Attend your court hearing. It is critical to be on time and ready to speak on your own behalf. Bring copies of your motion and all supporting documents. If the contempt has continued after you filed the motion, bring evidence of that as well. For example, if you are still being denied visitation or more bill payments are missed.
   • Arrange for child care before the hearing. Most judges have rules against young children in the courtroom and they can't be left unattended. Also, most judges will not like that you are exposing the children to arguments between parents. The only exception is if a child will be a witness in the hearing. If this is the case, bring a trusted friend or family member to stay with your child out in the hallway.
   • Stand when you address the court and lay out your points as you would in any contract dispute. Even though emotions run high in divorce proceedings, getting angry, disparaging your spouse, or grandstanding will not gain you favor with the judge.
   • If you and your former spouse settle the disagreement before the court hearing, you must contact the court and dismiss the motion. A simple letter with the names of both parties, the case number, and a statement that the issue is settled and you would like the case dismissed will suffice.
7. Comply with the court's decision. If you are found in contempt, you must immediately comply. A contempt ruling carries serious weight and can lead to fines or even incarceration. If you are ordered to arrange visitation and you refuse, this can be grounds for losing custody of your children. The court may order wage garnishment to satisfy bills that you agreed to pay or order the sheriff to seize property that wasn't timely delivered.

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Sources and Citations

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See also

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• Be Happy After a Divorce
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• Divorce Your Abusive Husband
• Cope With Separation
• Divorce a Missing Spouse in the USA
• Withdraw Divorce Papers

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