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An Introduction to the Divorce
Process in Dallas Texas
Separation
Filing for Divorce
Temporary Divorce Orders
Conducting Divorce Discovery
Mediation and Settlement
in the Divorce Process
Collaborative Representation
in the Divorce Process
Divorce Trials In Dallas
Decree of Divorce
Appellate Process in
the Dallas District
Divorce Modification
Paternity
Adoption
Grandparent Access
Child Protective Services
Abuse
Divorcing a US Military
Service Person
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Decree of Divorce
Tax Planning
Dividing of Retirement Plans
Enforcement and Contempt
Obtaining a Clarification
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.
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.
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.
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.
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.
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