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FAMILY LAW
PRIMER |
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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 |
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