Property
› Continuing Jurisdiction to Enforce Decree
› Order to Deliver Property
› Money Judgment to Enforce Award of Particular Property
› Money Judgment to Enforce Payments Awarded in Decree
› Clarifying Order
› Qualified Domestic Relations Order (QDRO)
› Contempt
Continuing Jurisdiction to Enforce Decree
A court that renders a dissolution decree generally retains the power to enforce the property division made in the decree. The court may render further orders to enforce the property division made in the dissolution decree to assist in the implementation of or to clarify the prior order. The court may specify more precisely the manner of effecting the property division, as long as the substantive division is not altered or changed. The court has at its disposal a variety of methods to enforce the property division, including a clarification order, an order to deliver specific existing property, a money judgment, an order enforcing an award of the right to receive installment payments or a lump-sum payment, and enforcement by contempt.
Who may seek enforcement.
Any party affected by the decree may file a suit to enforce the property division.
Procedure to invoke jurisdiction.
The court's authority to enforce its property decree is invoked by filing a petition with the court that rendered the decree. The petition is filed in the previous cause number and is governed by the rules of civil procedure as an original lawsuit, requiring service of citation of opposing parties
Finality of divorce or annulment decree.
An order of enforcement does not alter or affect the finality of the decree of divorce or annulment being enforced Top
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Order to Deliver Property
To enforce a property division, the court may order a party to deliver the specific existing property awarded. For example, the court may order a party to deliver an existing sum of money or its equivalent. The property need not have any special value.
Substantial compliance.
Ordinarily, courts are reluctant to become involved in disputes regarding items of relatively minor value. In such cases, courts tend to find substantial compliance with an order if a party has performed all important particulars required by the divorce decree
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Money Judgment to Enforce Award of Particular Property
If a party fails to comply with a divorce decree, and delivery of property awarded is no longer an adequate remedy, the court may render a money judgment for the damages caused by the failure to comply. The remedy is in addition to any other remedies provided by law.
Imposition of equitable lien to secure judgment.
The court could initially and may in an enforcement proceeding impose a lien to secure the award of property to a spouse.
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Money Judgment to Enforce Payments Awarded in Decree
Any party who has not received payments of money as awarded may petition for a judgment against the defaulting party for the amount of unpaid payments. This remedy is in addition to any other remedies provided by law.
Caution: If the ex-spouse has filed for bankruptcy, claiming the payments to be a dischargeable debt, the obligee spouse must apply to the bankruptcy court for a determination that the obligation is not, in fact, subject to discharge by establishing that it is a divorce-related debt
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Clarifying Order
When Clarifying Order Is Available
On the request of either party or on the court's own motion, a court ordinarily may render an order clarifying the division of property made in a decree. A clarifying order may be useful, for example, when a change of circumstances not contemplated in the decree requires one of the parties to take specific actions not mentioned in the decree in order to carry out the property division. Also, a clarifying order may be necessary to make the decree specific enough for enforcement by contempt. In this connection, the Family Code authorizes a clarifying order to be made either (1) before a motion for contempt is made or heard; (2) in conjunction with a motion for contempt; or (3) on denial of a motion for contempt.
When clarifying order takes effect.
A clarifying order may not be given retroactive effect for the purposes of contempt as an enforcement tool. Obviously, a party may not be punished for conduct not sufficiently specified in a decree. Moreover, a reasonable time must be provided for compliance with the clarification order before charging a party with contempt of that order or otherwise enforcing the order.
Power of trial court to issue order clarifying appealed decree.
If a divorce decree is appealed, the trial court loses jurisdiction to issue a clarifying order as to any portion of the decree concerning which the higher court renders judgment. As to issues that the higher court simply affirms without addressing, the trial court retains jurisdiction to clarify the decree.
Appeal of clarifying order.
A clarifying order itself is appealable as long as it qualifies as an appealable final judgment .
NOTE: It is not necessary to attempt to enforce an unclear decree before complaining on appeal that the decree is unenforceably vague.
Finding Required for Issuance of Clarifying Order
If the court finds that the original form of the division of property is not sufficiently specific to be enforced by contempt, the court may issue a clarifying order setting forth specific terms to enforce compliance with the original division of property.
Clarifying order not available if decree is unambiguous.
A request for clarification of a vague or ambiguous provision in a final decree is not considered a collateral attack on the decree, because the court has continuing jurisdiction to clarify its decree. Nevertheless, if the provision is unambiguous, the court must give effect to the literal terms of the decree and may not issue a ``clarifying'' order.
Clarifying Order May Not Change Property Division
Although a clarifying order may specify more precisely the manner of effecting a property division made in a decree, the order may not attempt to alter or change the substantive division of property. Thus, for example, a clarifying order may not divide property that was not divided in the divorce decree.
Lien to secure performance permissible.
It has been held that a court may order, as a clarification of its property division decree, one ex-spouse to sign a note to be secured by a lien on specified property
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Qualified Domestic Relations Order (QDRO)
Purpose of Subsequent Order
If a divorce decree divides retirement benefits but does not provide a qualified domestic relations order (QDRO) or similar order permitting the payment of benefits to an alternate payee or other lawful payee, a party may request that the court render a QDRO or similar order. And, when the original decree attempted to permit direct payment of benefits but the plan administrator determined that it does not meet the requirements of a QDRO, the court has jurisdiction to render an amended or corrected decree that will qualify as such.
Continuing Jurisdiction
A petition seeking a new or amended QDRO or similar order must be filed with the court that rendered the final decree dividing the property. Notwithstanding any other enforcement provision of the Family Code, the court that rendered the final decree dividing the property has continuing, exclusive jurisdiction over the parties and property for purposes of rendering a QDRO or similar order as if the court were required to currently divide the benefit in a manner substantially similar to the original division.
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Contempt
Court's Inherent Power to Punish by Contempt
Texas courts are statutorily empowered to enforce their orders by contempt. However, the authority of a court to enforce its orders by contempt is an essential element of judicial independence and authority and does not depend on statutory authority.
Contempt power in enforcement of property division.
An order to deliver specific property or an award of a right to future property may be enforced by contempt. However, as will be discussed in [b], below, the court cannot invoke contempt to enforce an award of a sum of money in a decree of divorce, whether payable in a lump sum or in future installments in the nature of a debt, unless the payment is of a fund in existence at the time of the decree.
Civil and criminal contempt.
Civil contempt, or coercive contempt, is imposed when a court imprisons the contemnor until the person performs certain acts required by the court. Civil contempt may not be imposed unless the contemnor has the present ability to perform the required acts at the time of the hearing. Criminal contempt, or punitive contempt, is imposed when the court fines the contemnor or imprisons the contemnor for a determinate period of time. Criminal contempt may not be imposed unless the contemnor had the ability to perform the required acts at the time they were required to be performed. In an appropriate case, the court may impose both civil and criminal contempt.
Limitation of Court's Power to Enforce Debts
A court does not have the power to hold a party in contempt for a failure to pay a debt; such a contempt order would be void. In this context, a debt is an obligation imposed by a decree that requires a party to pay money to be earned in the future (except for child support payments); on the other hand, an order to deliver specific, existing property or to pay all or part of an existing fund does not constitute a debt. Thus, for example, a divorce decree that awards a sum of money, payable in a lump sum or in future installments, is not enforceable by contempt, unless either:
- Payment is to be made from a fund that exists at the time of the decree; or
- The decree awards the right to receive installment payments or a lump-sum payment due on the maturation of an existing vested or nonvested right to be paid in the future
- The award is for temporary spousal maintenance, as when, following a long term marriage, a spouse lacks the ability to work and earn money to be self-support
Interest and taxes treated as debts.
Even if the property division itself is enforceable by contempt, interest charged for delays in paying or delivering property is considered a debt and may not be enforced by contempt. Similarly, the court may not use contempt to enforce the payment of tax liability, since tax liability is a personal obligation constituting a debt.
Attorney's fees and costs treated as debts.
Attorney's fees and court costs awarded in the divorce proceeding generally are not enforceable by contempt since to allow such enforcement would amount to imprisonment for debt. However, if the attorney's fees or court costs were made payable out of property in possession of a party at the time the order was made, contempt is a permissible enforcement remedy.
Partially invalid contempt order.
If one part of a commitment order for contempt is invalid as imprisonment for a debt, the contemnor must still obey the valid portions of the order, unless the whole judgment fixing one inseparable penalty is partially void. In such a case the entire contempt judgment is void.
Prerequisites for Issuance of Contempt Order
Specificity of Underlying Decree
To be enforceable by contempt, a court order must spell out the details of compliance in clear, specific, and unambiguous terms, so that the person charged with compliance will know exactly what is required. Thus, for example, if the decree contains an order to pay over existing funds, it will not be enforceable by contempt unless it specifies when and to whom payment must be made. Similarly, a divorce decree that divides the spouses' property but does not order one spouse to deliver the property to the other spouse ordinarily will not support a finding that of contempt for failure to deliver.
Finality of Underlying Decree
To be enforceable by contempt, a decree generally must be final. However, the fact that a procedural rule gives the court plenary power to vacate or modify the decree for 30 days after signing the decree or denying a new trial motion does not mean that the decree was not final when rendered for purposes of enforcement by contempt.
Due Process Requirements
Contempt proceedings may be criminal in nature. For this reason, an accused contemnor should have all the rights and privileges of one accused of a crime, including the privilege against self-incrimination. It would appear, therefore, that a person charged with contempt of court should have the privilege against self-incrimination, the right to notice of the charges and possible punishment, the right to trial by jury, and, if indigent, the right to counsel. While these rights are clearly established by statute and case law for the person accused of failing to pay child support, their application to contempt proceedings involving property awarded in divorce has not been clearly defined.
Notice
Due process requires that, prior to the hearing at which the contempt order is rendered, the alleged contemnor must be served with timely notice of the contempt proceeding. Traditionally, the notice is in the form of a ``show cause'' order, specifying the particular acts for which the person is required to appear and show cause why the person not be held in contempt
Jury Trial
The Family Code provides that neither party may demand a jury trial ``if the procedures to enforce a decree provided by are invoked. When contempt is sought as an enforcement tool criminal sanctions are available. In view of that result, it is doubtful that the Family Code's ban on jury trials in property enforcement actions can be enforced, constitutionally, when multiple offenses of contempt are alleged. The United States Supreme Court has held that a defendant, prosecuted in a single proceeding for multiple petty offenses, has no Sixth Amendment U.S. Constitutional right to jury trial even if the aggregate jail term could exceed six months. However, the Texas Supreme Court has stated that Art. 5 § 10 of the Texas Constitution was intended to broaden the right to a jury afforded by Art. 1 § 15 (which tracks the Sixth Amendment to the U.S. Constitution), and the Texas Supreme Court has indicated that a contempt respondent facing more than ``petty'' offense exposure is entitled to a jury trial pursuant to Art. 5 § 10 of the state constitution.
To receive more information concerning your uncontested property and no children divorce, click Contact Us or contact our certified legal assistant Barbara at (214) 368-8300 with any questions.
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