Home > divorce, family law general, paternity/child custody > Enforcing Your Domestic Decree: How, When, Why

Enforcing Your Domestic Decree: How, When, Why

So you’ve gotten divorced, or you completed a custody action.  You have an order that’s supposed to govern who has what rights to kids, or child support, or alimony.  And things are gonna be just GREAT now, because everyone’s gonna follow the Order to a T, and everyone will play nice, and no one would even THINK of ignoring or violating it.

Sometimes it feels like this with your domestic order, huh...

Sometimes it feels like this with your domestic order, huh…

And then you woke up.  If you think that it’s all going to be rosy after you’re divorced or after you’ve had rights given you in a custody action, think again.  While you may be one of the lucky ones who divorces or is working with another party who is reasonable and good to work with, that isn’t always the case.  Once you have an order, and the other party is violating it, your only recourse is to file what’s called a Motion for Order to Show Cause (as to why the other party shouldn’t be held in contempt for violating the order.)

An Order to Show Cause (hereinafter OTSC) is entered on the filing of a motion for one.  The Motion spells out all the ways that the other party has violated the court’s most recent, controlling order, and what you want the court to do for you to make it up to you.  You support it with a Statement or Affidavit, which is effectively you telling in your own words what the circumstances were that led to or constituted the violation, what you want the court to do for you to make it right, and why that’s appropriate.

There are a couple of ways to go about this.  You can either a) do it yourself; or b) hire a lawyer to do it for you.

There are benefits to doing this yourself.

Benefit #1:  It’s free.  There is no filing fee for filing a Motion for Order to  Show Cause.  You just get the documents off the state courts website, follow their instructions for filling them out, and file.  You do need to properly serve the other party for this, however, not just give them the documents.  (Proper service is spelled out in Utah Rules of Civil Procedure Rule 4(d) )  If you hire a lawyer, depending on how difficult the other side is to work with, you could end up spending between $1000 and $1500 to go through the whole process, from drafting the documents and serving the other party, to negotiating with the other lawyer (or other party) and attending the hearing(s).  It could cost more, too…If you’ve got an opposing party who is not willing to negotiate at all, OR if you are in a district whose family court commissioners hold an initial hearing where they only certify the issues to a judge for ANOTHER hearing, it could cost more.  (Note:  I’m quoting what it would generally cost you to hire ME to do an OTSC in Cache Valley, based upon my rates and my procedures….I do ask for a $1500 retainer, of which any portion that is unearned will be refunded to you when the case finishes.)  

Benefit #2:  Some courts/judges/commissioners will cut you a little slack if you’re unrepresented.  They won’t expect your pleadings to be perfect, and if you mess up, they’ll give you a little push in the right direction.  (Not all will do this…You have been warned.)

The downside of doing it yourself is, of course, that you have to do it yourself, and you’re already emotionally involved in your case and not thinking completely straight already, generally (or maybe this is only me… :/ ).  Depending on the judicial district you are located in, it could be a real hassle to work with the court on your own, just in knowing what that court’s procedure is for calendaring, or what they want filed when, etc.  And while the instructions on the state courts website are extremely detailed and clear, it can be confusing if you’re not familiar with the court and how it works.

Or you can hire a lawyer.  I’m biased.  I think the benefits for paying a lawyer to handle it for you, save you the hassle, worry about how/when things get filed, worry about scheduling with the court, worry about doing the talking in court, dealing with opposing party/counsel so you don’t have to, far outweigh the costs of hiring a lawyer.  I DO know, however, that it’s not always financially possible to do that.  Which sucks.  But that’s reality for a lot of us.

There are times when you wouldn’t want to hire a lawyer to handle your OTSC anyway.  For example, if you’re trying to collect $600 in unpaid child support/medical expenses/alimony/etc., it hardly makes sense to pay a lawyer more than what the court would award you.  Sometimes you can get the court to award you attorney fees in these cases, but not always…totally depends on the judge/commissioner.  As an example:  I had a case where opposing party had egregiously violating the mutual restraining order in the parties’ decree.  We had a full hearing, showed the judge a dozen + emails that documented violations, my client testified, and opposing party admitted to it all.  The judge still only awarded my client about half of her actually expended attorney fees.  She got to suck up the rest of those fees.

A couple of things to think about before you go and file an OTSC:

1)  You aren’t going to get very far with the court if you try to enforce every teeny tiny little bitty infraction of the decree.  Being late once bringing back the kids is not worth the court’s time.  However, if you can show a history of being late, and it’s always REALLY late; OR if you can show that opposing party consistently doesn’t pay child support, and it’s not just because he/she is totally broke/out of a job/etc.; OR if you can show that opposing party withheld several days of visitation with the children, you’ve got something the court will look at and can grant some relief for.

So document.  Keep track of dates/times.  If you have a mutual restraining order that limits the types of topics opposing party can talk to you about, only communicate via email, and save all of them.  These are things you can use in your OTSC to prove your case.

2)  That said, if you NEVER do anything about enforcing violations, it starts looking like you’re okay with them (except for child support…the courts will enforce child support orders forever and always, though they’ll also probably yell at you for taking so long to try and enforce in court.)  If, for example, you never mention the kids being 3 hours late, and they are 3 hours late almost every time they come home from opposing party’s visits, it starts looking like you really don’t care if they’re 3 hours late.  Filing OTSC’s in cases like that look like they’re retaliatory for some other irritant.  So while you wait until you have enough violations to justify the OTSC, don’t wait too long.

3)  The courts in Utah do not like domestic cases.  I was in a hearing in Bountiful on an OTSC, before the judge (not just the commissioner).  This was the case of egregious violations documented in email that I mentioned above.  We got done presenting evidence, the judge left the courtroom to go deliberate, and came back 20 minutes later.  This is what he started out by saying.  I quote him directly:

(This wasn't him...but he kinda looked like this :/ )

(This wasn’t him…but he kinda looked like this :/ )

“90% of my caseload is family law, and I hate it.  90% of ALL judges caseloads are family law, and we ALL hate them.  People who get divorced are whiny, spoiled brats who got divorced because they weren’t getting their own way in their marriages.  And then they come into court on orders to show cause because they are STILL whiny, spoiled brats who are not getting their own way in their divorces.”

Well.  I’ll tell you this.  When you have been emotionally abused by the opposing party, getting emotionally abused by the court is not pleasant.  Very like pouring salt into a raw wound.  What the judge said was completely inappropriate, but there isn’t ANYTHING that any of us can really do about that.  We simply have to recognize that we need to only ask the court to enforce if there is a real, honest to God problem.  Do Not Cry Wolf with the court.  Let’s not prove that judge right by looking like whiny spoiled brats.  And then don’t take the horrible things some judges say personally.

And that’s about the size of it, Folks.  I sure wish we could all just behave reasonably and NOT have to get the court involved in enforcing our Orders.  Really isn’t fun.  But I guess if everyone were perfectly reasonable, no one would need to get divorced in the first place.  Reality really sucks sometimes that way.

Advertisements
  1. No comments yet.
  1. No trackbacks yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: