Sometimes in life, things don’t work out the way we hope they will, and that includes marriage. Perhaps you and your spouse started out on the same page and had the same goals, only to find out that after you got married, your views no longer aligned and you wanted different things. Maybe you got married on a whim when you believed in love at first sight, and later on, realized that you made a big mistake. Perhaps you’ve recently discovered that your spouse has been cheating on you. If you and your spouse have decided that a divorce is the best option for your family, there are a lot of things that need to be considered. A divorce decree is one of those things.
How Do I Enforce My Divorce Decree?
What is a divorce decree? How do you go about enforcing one? To find the answers to these questions and more, keep on reading.
What is a divorce decree, anyway?
Legal separations can be draining in every aspect of the sense; emotionally, mentally, physically, spiritually, and financially. From trying to figure out a new parenting scheduling for the children, to decide who should get what property, there’s a lot of baggage that needs to be handled when you’re going through a divorce. Even though you and your spouse may have the very best of intentions, there are bound to be some hiccups and heartaches along the way.
When you figure everything out, and the dust finally settles, you and your ex-spouse will be left with a divorce decree.
A divorce decree is the final written ruling handed down from the court that officially and legally terminates a marriage. It’s an official court order that states that your marriage is over, what was agreed to or ordered, and what each of you is entitled to.
What does a divorce decree do?
It’s important to note that a divorce decree is a legal document and court order. That means that both parties named on the document must abide by the terms that are listed on the document. Therefore, failing to adhere to the guidelines that are set forth by the divorce decree is violating a court order. Whether you were happy with it or not, you and your ex-spouse are bound to the terms and conditions. As a result, you’re both held to its terms in a similar manner as you would be to a written contract.
Should your ex-spouse fail to comply with the divorce decree, you have the right to take legal action. The terms of the legal document can be enforced in a court of law. As such, your ex could be held liable for noncompliance. While this can be good news, especially if things get ugly, enforcing a divorce decree is not always as straightforward as it sounds. Some terms the Court readily enforces with relatively swift justice. Other terms the Court may be hesitant to enforce even when there appears to be a violation. Getting the justice you are entitled to can be a complicated process.
What to do to enforce the Decree?
When your ex isn’t complying with the terms and conditions in your divorce decree, ringing them up or knocking on their door to share a colorful choice of words might be tempting. Whatever you do, resist that temptation! If you go off on your ex (even if he or she deserves it), you could end up putting yourself in a precarious situation. In the end, you’ll be doing more harm than good.
Even though you might be extremely frustrated, take a deep breath, and use the following tips to enforce your divorce decree and get the justice you are legally entitled to.
Communicate with your ex
Most conflicts can be worked out between the ex-spouses. Wait until you are in the right frame of mind before communicating with your ex about the issue. Communicate in a business-like manner. Clearly communicate the issue and suggest a solution to the problem. Written communication is often best if you will have a hard time keeping your cool with your ex. Be open-minded and not afraid to think outside the box at times. Sometimes there is a middle ground that both parties can agree to. Also, don’t be afraid of the stalemate. Think back to when you were together and all the times that you just didn’t agree. For more minor issues, sometimes you just need to agree to disagree and move on.
Some issues are too important to ignore. If you and your ex can’t reach a solution, you may need to bring in a third party to help. If the issue is regarding the parenting time with the children, you may be required by your divorce decree to attempt mediation with a licensed mediator before filing legal action. But mediation doesn’t always have to be so formal. It is not uncommon for the parties to have a third party that helps resolve issues when communication has broken down. This is often a mutual friend or one party’s family member that is good about talking with both sides and helping find a solution. There are many times a diplomatic grandma has kept two parents, now ex’s, from ending up back in Court.
File for Contempt
Sometimes you just need the Court’s help to resolve a dispute. Although there are other methods of enforcement, one of the most common legal methods to enforce the terms of a divorce decree is called both a show cause and contempt action. You will often hear those terms used interchangeably as the action’s name. In Nebraska, this is a legal action filed within the same court case number as your divorce action to let the court know that your ex has failed to satisfy certain terms of your divorce decree and to ask for the Court’s help in reaching a solution. In response to your allegations, the Court then enters an Order telling your ex that they must appear at a court hearing and “show cause” as to why they aren’t following the terms of the divorce decree.
Head to court
Although the process can vary, the Order to Show Cause generally includes a hearing date that the party must appear at or a warrant will be issued for their arrest. Sometimes the first hearing is just for the party to admit or deny the allegations with a subsequent hearing to be set if the party denies the allegations. Other times, the first hearing is the only hearing and you must be prepared to provide proof of the violations to prove your case at that time.
If the judge agrees with you that the other party violated the terms of the divorce decree and did not have adequate justification for not following the terms, then the Judge will find the party in “contempt” of court. Sometimes the Judge will issue a sentence on the same day.
Other times the Judge will set another hearing for the sentencing. At the sentencing, the Judge will enter an order stating what the party has to do to “purge” of the finding of contempt. Although in Nebraska you can be sentenced to up to six months of jail time if found in contempt of court, often the Court gives the party a chance to fix things by a set deadline instead.
For example, if the party failed to pay an obligation under the Court order, the Court may give the contempt or a certain amount of time to pay the obligation before being required to report to the jail on a certain date to serve jail time for violating the Court order. For a denial of parenting time, the Court may grant make-up parenting time days instead of sentencing to jail time. Depending on how egregious the violation is, the Court may order the other party to pay the attorney fees for having to bring the show cause/contempt action.
Major Issues Only
Keep in mind that the contempt process is often time-consuming and may involve multiple hearings. Thus, it really isn’t a good tool for minor violations of the Court order and is designed to address major issues that require a resolution. Further, the penalties for a contempt action are often quite stiff. Thus, some judges will decline to find a party in contempt for violation of the order if the Court doesn’t see sentencing as a good solution or doesn’t see the issue as a major issue. The judge may instead refer the parties to mediation or leave the parties in a stalemate.
Is a contempt action right for you?
Examples of What are Often the Subject of a Successful Contempt Action:
- Failing to Sell or Refinance Home within Time Period Allowed in Decree
- Failing to Pay Child Support
- Withholding the Children from All Parenting Time
Examples of What the Court May Be Hesitant to Enforce by a Contempt Action:
- Being Late for Parenting Time Exchanges, except where is especially egregious or a consistent pattern
- Denial of Phone Time with a Child, except where is especially egregious or a consistent pattern
- Being Rude or Obnoxious, except where is abnormally offensive
- Being a Poor Communicator, except where there is no communication or an especially egregious failure to communicate
- Talking Negatively about the Other Parent to Others or to the Children, except if very publicly or especially egregious
- A Parent’s Consistent Failure to Exercise the Court-Ordered Parenting Time (often better handled through a modification action).
The Show Cause action is a great tool with serious consequences for violations of major issues. Depending on the facts and your judge, there may be a better legal solution. Motions to clarify, motions to enforce, or other motions are sometimes better ways to get the Court to order a solution than asking for the stiff punishments available in a contempt action. Talk to your attorney about your best options before proceeding.
Additional Reading from the Nebraska Judicial Branch:
Law Office of Julie Fowler, PC, LLO | Divorce Lawyers Omaha
Child Custody | Child Support | Divorce Lawyers Omaha
If you are looking for an attorney in a child support case or divorce in Omaha, Nebraska, or the surrounding areas (including Papillion, Bellevue, Gretna, Elkhorn, Lincoln, Nebraska City, Sarpy, Lancaster), contact our office to set up a consultation.