Decree of Divorce

There are two different types of decrees, those agreed to by the parties, and those that reflect the findings made at trial. Clearly those agreed to afford a great deal more liberty in planning and addressing the unique needs of the parties and if applicable children.

Tax Planning

Numerous income tax consequences of the divorce may need to be considered, depending on the spouses' situation--for example, if the community property included stock options or S corporation stock, or if installment obligations were transferred between the spouses, or if the family residence was sold.

If you are unmarried at the end of the year, your filing status will be ``unmarried individual'' (single taxpayer) unless you are eligible to claim head-of-household filing status. Your gross income for the year of the divorce generally includes half of the community income received in that year. You are also entitled to claim half of the deductions attributable to expenses paid from community funds and losses charged to community property. The parent who has custody of a child for the greater portion of a calendar year (the ``custodial parent,'' who usually is a managing conservator) is entitled to claim the federal income tax dependency exemption for the child for that year, assuming that the child received more than half of his or her support from the parents--without regard to how much support each parent provided.

Dividing of Retirement Plans

The court must determine all rights of both spouses in any pension, retirement plan, annuity, or other form of savings, bonus, profit-sharing, or other employer or financial plan of an employee, whether or not self-employed, in the nature of compensation or savings. Employee retirement benefits, such as interests in profit-sharing plans and pension plans, are subject to division on divorce, to the extent that they constitute community or quasi-community property, even if they have not matured and are not subject to possession and enjoyment. To the extent that the right to receive disability retirement benefits was earned during the marriage, the benefits are community property, subject to division on divorce.

To create a right for the nonemployee spouse to receive payments directly from a pension plan, the decree normally must use language that is sanctioned by a law governing the plan in question, for example: ERISA and the Internal Revenue Code, for virtually all private pension plans, various Government Code sections, for many Texas state or local employees' pensions, Title 5 of the United States Code, for federal civilian employees' pensions, and Title 10 of the United States Code, for military pensions.

Enforcement and Contempt

A party seeking enforcement of a child support order may join in the same proceeding any other claims and remedies against the party who failed to comply with the order. Thus, a motion for enforcement of child support may be combined with a motion to enforce or modify other orders rendered in the divorce case. Moreover, a motion to enforce a child support obligation may seek any one or more of the following remedies: contempt of court, a money judgment for delinquent child support, withholding support from the obligor's income, or requiring of bond or other security for payment.

Any child support order may be enforced by contempt under the Texas Family Code, provided, of course, that it is definite, clear, and as precise as possible to inform the person owing the support of what conduct or action is required. A contempt motion may request that a delinquent child support obligor be punished for civil contempt, criminal contempt, or both. The difference between the two types of contempt lies in the nature of the punishment and, to some extent, in procedural safeguards afforded the obligor.

Civil contempt. An obligor who is punished for civil contempt for failure to pay child support is incarcerated until the person pays the amount of delinquent child support ordered by the court. Thus, civil contempt is remedial and coercive in nature. It exerts the judicial authority of the court to persuade the contemnor to obey a court order for the benefit of an opposing litigant. Since imprisonment is conditioned on the performance of the court order, civil contemnors ``carry the keys of prison in their own pockets.' However, an inability to pay child support at the time of the contempt hearing is an affirmative defense to a civil contempt proceeding.

Criminal contempt. Criminal contempt is punitive in nature. The sentence is not conditioned on some promise of future performance. Instead, the contemnor is punished for some completed act that affronted the dignity and authority of the court Ordinarily, the punishment for criminal contempt is fixed and definite, and the contemnor's subsequent voluntary compliance will not avoid punishment for past acts. Punishment for criminal contempt generally consists of imprisonment for a specified period, a fine in a definite amount, or both.

Many types of licenses are subject to suspension for failure to pay child support for failure to comply with a subpoena issued in a parentage determination or child support proceeding, or for failure to comply with a court order providing for the possession of or access to a child. Driver's licenses, business and professional licenses, hunting and fishing licenses, and many other licenses are targets for suspension for noncompliance.

A motion may be filed to enforce a final order for conservatorship or possession of or access to a child. the scope of a contempt proceeding is limited to the enforcement of the underlying order; the court cannot modify the order being enforced

A habeas corpus proceeding for return of a child is a means by which a child can be returned to the child's rightful possessor with speed and simplicity. When a person (referred to as a relator) petitions for habeas corpus, the court will direct issuance of a writ of habeas corpus, commanding the person alleged to be holding the child unlawfully to appear with the child before the court for a hearing. At the hearing, if the court finds that the relator is entitled to possession of the child pursuant to a court order, the court must compel the immediate return of the child to that person. If the right to possession of a child is governed by a court order, the court in a habeas corpus proceeding usually must compel the return of the child to the relator if it finds that the relator is presently entitled to possession under the order

A court that renders a dissolution decree generally retains the power to enforce the property division made in the decree 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. 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. Additionally, the court has the power to enforce and punish by contempt.

Obtaining a Clarification

A court may clarify an order it rendered in a SAPCR proceeding if the court finds, on the motion of a party or on the court's own motion, that the order is not specific enough to be enforced by contempt. The court may clarify the order by rendering an order specific enough to be enforced by contempt, either by clarifying the terms of the prior order or by adding new, clarifying language to the original order. For example, a clarification order may correct a clerical error in the entry of judgment ordering child support. However, the court may not change the substantive provisions of the order that it clarifies, and any attempted change is not enforceable.