David T Bunger, Attorney at Law
Divorce is final but the ex-spouse did not follow the order
In many cases a final decree entered into the court means the end of the fighting and frustration that the divorcing couple have gone through. The divorce is over and most people move on with their lives. However, for some people the end of the divorce is simply a beginning of another set of problems, because their ex-spouse does not do what the divorce decree ordered them to do. This sort of thing happens primarily with the division of property. If the issues involve children (child support, visitation, etc.) the procedures to get remedy from the court are similar but have enough differences that I will address enforcement of child related issues in another blog. For purposes of this blog, I will focus on marital property.
The most common issue that arises post divorce with respect to property is compliance with the sale of the marital residence. For reasons that will be discussed in detail in a follow-up blog, most residential homes are by agreement to be sold after the divorce has been finalized. So what happens if a spouse is ordered to sell the marital home and the spouse does not sell the home? The procedure for asking the court for assistance is filing a motion to enforce the order.
The ultimate remedy is that the Court may find the non-performing ex-spouse in contempt of court and can order a myriad of things including jail time. However, most folks simply want the court to enforce the order and mandate compliance.
The procedure is governed by the Family Code in Chapter 9 and also by the Texas Rules of Civil procedure. Let’s briefly consider an example scenario. A married couple own a home together and are later divorced. The parties agreed within the decree that the wife will remain in the home and that the home will be sold within 6 months of the date the divorce is final. The proceeds (equity) is to be divided equally between the two spouses. A year later and the home
has not been sold and not even placed on the market. The ex-wife refuses to discuss the issue with the ex-husband and remains in the home. Section 9.003 of the Family code basically states that a suit to enforce the division of property that was in existence at the time of the divorce, must be filed before the second anniversary of the date the decree was signed.
Once filed, a hearing will be set and the parties will present their facts to the court. The court will then make a determination as to whether the accused ex-spouse is in fact in contempt of court and will then render sanctions, admonitions, or other things in order to enforce the compliance of the order.
If you are experiencing a similar situation to what was described in this blog, give us a call. We are happy to assist you with any enforcement issues you may have.