|
This paper deals with proper drafting techniques for the practitioner to apply in organizing and writing a decree that conforms to the court’s decision, Texas case and statutory authority, and the intent of the parties. Although the title might otherwise indicate, there probably is no perfect decree for every case. The author hopes that some of the ideas will be helpful when you draft your orders.
I. FORMALITIES
Like any other judgment of a Texas trial court certain matters must be contained in the body of the decree. These include:
1) the caption
2) the title (“Decree of Divorce”)
3) the date of the hearing
4) identification of the names of the parties, any ad litem appointed in the case
5) a recitation regarding which parties and ad litem(s) appeared and did not appear
6) a recitation regarding service on non-appearing parties
7) whether the making of a record was waived by the parties or, if not, by whom made
8) establishment that the court has acquired jurisdiction and venue over the person or subject matter of the divorce, and/or property and children of the marriage
9) whether a jury or judge made the factual determinations
10) whether the order was by agreement with approval of the court, or by the court after hearing
11) grants the divorce on a fault or no-fault basis
12) identifies the children, if any, subject of the action by: name, sex, birthplace, birthdate, home state and social security number, and finds no further children are expected
13) makes provision for the conservatorship, possession, access, support, and insurance coverage for the children
14) provides detailed information as to each conservator and child
15) contains required notice language regarding the effect of failure to support, provide ordered possession, and requiring notification of phone, address, and employment changes by a conservator
16) makes a just and right division of the property of the parties
17) makes provisions for the payment of debts of the parties
18) awards property interests securing payments of debts, if any
19) provides for court ordered or contractual spousal maintenance, if any
20) provides for payment of attorneys’ fees and costs at trial, and, if necessary, on appeal
21) addresses federal income tax liabilities of the parties
22) awards the tax exemptions for the children
23) divides undisclosed property
24) confirms separate property and provides for reimbursement claims, if any
25) sets forth rules for delivery of property and execution of documents
26) grants or denies permanent injunctive relief
27) grants or denies tort claim judgment, if any
28) provides for continuation, if ordered, of health insurance benefits
29) enters a change of name of either party if appropriate and ordered
30) denies relief not granted
31) is dated and signed by the court, as well as, where appropriate, by consenting parties and attorneys
32) attorney signatures are to be accompanied by address, phone, fax, and bar number.
II. GENERAL CONSIDERATIONS
A. Introduction
Of course, the most important consideration in the drafting of a decree is to insure that the decree adequately represents the judgment of the court, and where appropriate, the agreement of the parties. It is axiomatic that, where possible the decree should be drafted in such a way that failure to abide by and carry out its terms will, to the maximum extent possible, subject the violating party to punishment and provide the non-violating party with the broadest of protection and recourses.
Therefore, to the extent possible, the decree should be drafted so as to allow for its enforcement by contempt. Where not possible, it should be drafted so as to allow enforcement as contract, and, when possible, it should allow for maximum recovery of fees and expenses incurred by the non-violating party expended to enforce the order.
B. Legal Prerequisites to Enforcement
1. The Basic Premises
To be enforceable:
a) The court rendering the order to be enforced must have jurisdiction over the subject matter.
b) The court rendering the order to be enforced must have jurisdiction over the parties.
c) The court must have the power to render the particular order sought to be enforced.
d) The order to be enforced must be detailed in clear, specific, and unambiguous terms.
e) The party against whom relief is sought must have knowledge of the content of the order. This is a jurisdictional prerequisite to a valid contempt order.
C. Information gathering
1. To be effective in drafting; you must know what you are dealing with. At the very least you should have the client fill out and return an information packet and/or inventory form. Additionally, you should determine if any of the following apply or exist:
a) Is there a partnership or close corporation that you are dealing with? If so, obtain all financial documents including complete tax returns, financial statements, profit and loss, income statement, balance sheets, loan documents, appraisals, deposit slips, check registers, partnership agreement and articles of incorporation. What restrictions on transfer, if any, exist?
b) Is there a pre- or post-nuptial agreement? Get it and read it.
c) Have any trust or UGTMA conveyances to children been created? Obtain copies.
d) Is either spouse a beneficiary of a trust? Is it discretionary or does it have mandatory payments? Who are the trustees? What is its value? Obtain the documents.
e) Have any appraisals of property been prepared? Obtain copies.
f) Obtain all financial statements filed with any lending institution.
g) Did either spouse do books on a P.C.? Print it off.
h) Do the parties own property as joint tenants or community property with right to survivorship?
i) Has there been a bankruptcy? Obtain copies of all relevant documents.
2. To enforce compliance, have your client obtain copies of each of the following documents:
a) As to assets: Get copies of all deeds; car titles; bank statements; brokerage account statements; insurance policies (home, auto, life, health); notes receivable; profit sharing and pension/retirement/401K plans; and other indicia of ownership of assets.
b) As to debts: Get copies of notes; deeds of trust; current credit card statements; bills; and other indicia of liabilities. Find out if loans have been made against retirement plans.
c) Tax Returns: Get copies of the last 3-5 years of tax returns, and copies of any correspondence from the Internal Revenue Service.
d) QDROS’s: Contact the plan administrator for pension plan and health insurance plans. Ask them if they have a form order for QDROS’s and QMCSO’s.
D. Limitations on Court’s Authority
1. Statutes of Limitation -
a) Property: §9.003 TFC:
“(a) A suit to enforce the division of tangible personal property in existence at the time of the decree of divorce or annulment must be filed before the second anniversary of the date the decree was signed or becomes final after appeal, whichever date is later, or the suit is barred. (b) A suit to enforce the division of future property not in existence at the time of the original decree must be filed before the second anniversary of the date the right to the property matures or accrues or the decree becomes final, whichever date is later, or the suit is barred.”
b) Undivided Property: §9.201 TFC:
“(a) Either former spouse may file a suit as provided by this subchapter to divide property not divided or awarded to a spouse in a final decree of divorce or annulment. (b) Except as otherwise provided by this subchapter, the suit is governed by the Texas Rules of Civil Procedure applicable to the filing fo an original lawsuit.”
c) Possession of Child: §157.004 TFC:
“The court retains jurisdiction to render a contempt order for failure to comply with the order of possession and access if the motion for enforcement is filed not later than the sixth month after the date: (1) the child becomes an adult; or (2) on which the right of possession and access terminates under the order or by operation of law.”
d) Child Support: §157.005 TFC:
“(a) The court retains jurisdiction to render a contempt order for failure to comply with the child support order if the motion for enforcement is filed not later than the sixth month after the date: (1) the child becomes an adult; or (2) on which the child support obligation terminates under the order or by operation of law. (b) The court retains jurisdiction to confirm the total amount of child support arrearages and render judgment for the past-due child support of a motion for enforcement requesting a money judgment is filed not later than the fourth anniversary after the date: (1) the child becomes an adult; or (2) on which the child support obligation terminates under the order or by operation of law.”
e) Wage Withholding: §158.102 TFC:
“The court retains jurisdiction to render an order that provides for income to be withheld from the disposable earnings of the obligor until all current support and child support arrearages, including interest, have been paid.”
2. Statutory and Case Law Limitations on Court Authority –
a) With respect to children, court may not:
· Order specific investments be made for a child out of settlement proceeds for child’s personal injury. [McGough v. First Court of Appeals, 842. S.W.2d 637 (Tex. 1992)]
· Order child support for a child who is not disabled after age 18 or high school graduation, whichever occurs last, or after child marries, dies, or has disabilities of minority removed. [Tex.Fam.Code §154.001]
· Order child enrolled in specific school. [Ex Parte Miller, 400 S.W.2d 295 (Tex. 1966)]
· Order anything concerning religious instruction of child unless instruction is immoral, illegal, or harmful to child. [Alaniz v. Alaniz, 867 S.W.2d 54 (Tex.App.—El Paso 1993, no writ)]
· Deny visitation or access to a parent appointed as Possessory Conservator except in the most extreme cases. [Hopkins v. Hopkins, 853 S.W.2d 134 (Tex.App.—Corpus Christi 1993, no writ)]
· Fail to appoint a parent as Managing Conservator unless the Court finds the appointment would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development. [Tex.Fam.Code §153.131]
· Fail to appoint a parent (not appointed as a Managing Conservator) as Possessory Conservator unless the Court finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child. [Tex.Fam.Code §153.191]
· Without a verified pleading or affidavit, issue a Temporary Restraining Order that excludes a parent from possession or access to a child, attaches the body of the child, or orders that a child be brought into court or of a parent designated by the court. [Tex.Fam.Code §105.001(c)]
· Issue a Temporary Order for conservatorship or support of a child, or for payment of attorney’s fees except after notice and hearing. [Tex.Fam.Code §105.001(b)]
· Render an order that conditions payment of child support on whether a managing conservator allows a possessory conservator to have possession or access to the child. [Tex.Fam.Code §154.011]
· Predicate visitation on payment of child support. [Tex.Fam.Code §105.006(d)]
b) With regard to property, court may not:
· Divest separate property. [Cameron v. Cameron, 641 S.W.2d 210 (Tex. 1992); Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex. 1977)]
· Divide social security, and some other federal benefits, including those given to military personnel.
Social Security: Richard v. Richard, 659 S.W.2d 746 (Tex.App.—Tyler 1983, no writ)
Disability Payments from the Veteran’s Administration: Ex Parte Johnson, 591 S.W.2d 453 (Tex. 1979)
Military Readjustment Benefits: Perez v. Perez, 587 S.W.2d 671 (Tex. 1979)
· Absent a finding of alter ego or constructive fraud, divide corporate or partnership assets.
Corporation: Thomas v. Thomas, 738 S.W.2d 342 (Tex.App.—Houston [1st Dist.] 1987, writ denied)
Partnership: Texas Uniform Partnership Act. Tex.Rev.Civ.Stat.Ann. Article 61326 (Vernon 1970; Vernon Supp. 1992); Marshall v. Marshall, 735 S.W.2d 587 (Tex.App.—Dallas 1987, writ ref’d n.r.e.); Harris v. Harris, 765 S.W.2d 798 (Tex.App.—Houston [14th Dist.] 1989, writ denied)
Alter Ego/Constructive Fraud: Castleberry v. Branscum, 721 S.W.2d 270 (Tex. 1986); Zisblatt v. Zisblatt, 693 S.W.2d 944 (Tex.App.—Fort Worth 1985, writ dism’d); Dillingham v. Dillingham, 434 S.W.2d 459 (Tex.Civ.App.—Fort Worth 1968, writ dism’d)
· Include personal goodwill in the value of a business. [Nail v. Nail, 487 S.W.2d 761 (Tex. 1972); Finn v. Finn, 658 S.W.2d 735 (Tex.App.—Dallas, 1983, writ ref’d n.r.e.)]
· Consider a professional degree as an asset. [Fausto v. Fausto, 611 S.W.2d 656 (San Antonio 1981, writ dism’d)]
· If no personal jursdiction over Respondent, divide out-of-state property of Respondent. [Kremer v. Kremer, 668 S.W.2d 457 (Tex.App.—El Paso 1984, no writ)]
· Award foreign realty. [Keith v. Keith, 763 S.W.2d 950 (Tex.App.—Fort Worth 1989, no writ); McElreath v. McElreath, 162 Tex. 190 and 345 S.W.2d 722 (1961)]
· Order sale of homestead to pay debts, or order proceeds from sale of homestead to be paid to general creditors. [Tex.Const. art. XVI, §50]
· Impose a lien on separate property to insure a just and right division of property. [Heggen v. Pembleton, 836 S.W.2d 145 (Tex. 1992)]
· Prohibit a party from spending funds for reasonable and necessary living expenses or engaging in acts reasonable and necessary to the conduct of that party’s usual business and occupation in a Temporary Restraining Order. [Tex.Fam.Code §6.501]
· Prior to notice and hearing, issue an order, pursuant to Tex.Fam.Code §6.502: “(1) requiring a sworn inventory and appraisement of all property, both real and personal, owned or claimed by the parties (the form, manner, and substance of the inventory and appraisal and list of debts and liabilities to be specified by the court); (2) requiring the support of either of the spouses; (3) requiring the production of books, papers, documents, and tangible things by any party; (4) ordering payment of reasonable attorney’s fees and expenses; (5) appointing a receiver for the preservation and protection of the property of the parties; (6) awarding one spouse exclusive occupancy of the residence during the pendency of the case; (7) prohibiting the parties, or either of them from the spending of funds beyond what the court determines to be for reasonable and necessary living expenses; or (8) awarding one spouse exclusive control of a party’s usual business or occupation.”
· Exclude a person from his/her residence without meeting the requirements of Tex.Fam. Code §71.11(a)(2); §71.15(g); and §71.15(h).
c) With regard to alimony, court may not:
· Order post-divorce alimony if proposed recipient does not meet eligibility requirements of Tex.Fam.Code §8.002, or proposed recipient who is not disabled has not exercised diligence in seeking suitable employment or developing the necessary skills to become self-supporting during any period of separation and during the pendency of the divorce suit. [Tex.Fam.Code §8.002 and §8.004]
· Unless based on a disability, order post-divorce alimony for more than three years. [Tex.Fam.Code §8.005]
· Order post-divorce alimony after the death of either party, or after the remarriage of the party receiving maintenance. [Tex.Fam.Code §8.007]
· Order post-divorce alimony in excess of the lesser of $2,500.00 or 20% of the payor’s average monthly gross income. [Tex.Fam.Coe §8.006]
· Modify post-divorce alimony to increase the monthly obligation of payor. [Tex.Fam.Code §8.008]
d) With regard to modification/clarification, court may not:
· In child support modification actions, order modified amount retroactive to a date prior to the date of service of citation or Respondent’s appearance in the case. [Tex.Fam.Code §156.401]
· In post-divorce alimony modification action, order modified amount retroactive to a date prior to the date of filing of the motion to modify. [Tex.Fam.Code §8.008]
· Modify property division after judgment becomes final. [Tex.Fam.Code §9.006]
· Give a clarifying order retroactive effect. [Tex.Fam.Code §9.008]
e) With regard to damages, court may not:
· Award damages for intentional infliction of emotional distress. [Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993)]
· Award damages against third party for criminal conversation or alienation of affection. [Tex.Fam.Code §1.106 and §1.107]
· Award damages for breach of fiduciary duty and make disproportionate division. [Schlueter v. Schlueter, 929 S.W.2d 94 (Tex.App.—Austin 1996, writ req’d)]
III. DRAFTING TO ENFORCE BY CONTEMPT
A. Language must be clear, specific, and unambiguous.
To be enforceable by contempt, the drafting attorney must remember the granddaddy of all contempt cases in Texas, Ex Parte Slavin 412 S.W.2d 43 (Tex.1967) which set the standard for orders sought to be enforced: the language of the underlying order must be clear, unambiguous, and subject to only one interpretation. Id, at 44. As the Supreme Court stated:
“It is an accepted rule of law that for a person to be held in contempt for disobeying a court decree, the decree must spell out the dates of compliance in clear, specific, and unambiguous terms, so that such person will readily know exactly what dates or obligations are imposed upon him. (citing cases).”
Id. at 44. The underlying reason for this rule is that:
“The rights of parties under a mandatory judgment whereby they may be punished as contemnors for a violation of its provisions, should not rest upon implication or conjecture, but the language declaring such rights or imposing burdens should be clear, specific and unequivocal so that the parties may not be misled thereby. (citing cases).”
B. The language must be command language directed unequivocable to the alleged contemnor.
Ex Parte Nash, 595 S.W.2d 571, 572 (Tex.Civ.App.—San Antonio 1979, no writ) provides that the order which the obligee seeks to enforce, must contain a clear command to pay, and that “It is decreed that the children be and are hereby are returned to Applicant…on Saturday October 27, 1979…” was not sufficient command language. See, Ex Parte Padron, 565 S.W. 2d 921, 921 (Tex. 1978). “Decreed” means the same as “ordered”. Ex Parte Snow, 677 S.W.2d 147, 149 (Tex.App.—Houston (14th Dist). 1984, no writ).
C. To be enforceable, the order should spell clearly and specifically each element to be enforced.
1. The elements:
WHO
DOES WHAT
TO WHOM
WHEN
WHERE
HOW
HOW LONG
HOW MUCH
WHY (“as temporary support”) (“as payment for Respondent’s community property interest in Petitioner’s retirement plan herein awarded to Petitioner”)
2. Areas wherein contempt as an enforcement option may lie
a. Personal Property
1) Legal Principles
§9.009 of the Texas Family Code (TFC) provides:
“To enforce the division of property made in a suit for divorce or annulment, the court may make an order to deliver the specific existing property awarded, whether or not of especial value, including an award of an existing sum of money or its equivalent.”
§9.011 TFC provides:
“An award of the right to receive installment payments or a lump-sum payment due on the maturation of an existing vested or nonvested right to be paid in the future may be enforced by the remedies provided by this subchapter. The subsequent actual receipt by the non-owning party of property awarded to the owner creates a fiduciary obligation in favor of the owner and imposes a constructive trust on the property for the benefit of the owner.”
To enforce these rights, §9.012 TFC provides the following distinction:
“(a) An order requiring delivery of specific property, or an award of a right to future property, may be enforced by contempt. (b) An award of a sum of money in a decree of divorce or annulment, payable in a lump sum or in future installment payments in the nature of debt, other than that in existence at the time of the decree or as provided in §9.011 of this code, is not enforceable by contempt. (c) This subchapter does not detract from or limit the general power of a court to enforce its orders by appropriate means.”
Therefore, to make the order to deliver specific property enforceable by contempt, care must be taken by the practitioner to command that items of personal property be delivered to a party at a particular time, place, and by what manner of delivery, and should specifically name the items to be delivered in order to be enforceable. Remember that pursuant to §9.001(c) TFC the trial court has a two (2) year period in which it retains the power to effectuate delivery of personal property awarded by motion to enforce its award.
It cannot, however, modify a previous order to alter the award of property. Pierce v. Pierce, 850 S.W.2d 193 (Tex.App.—El Paso 1993, writ denied), but may clarify (TFC §9.006). Of like affect is the duty to provide specific instruments to effectuate a transfer of interest ordered by the court. If the alleged contemnor is merely directed by the decree to deliver “all instruments” necessary to convey his interest in an asset subject to a titled asset, such a directive is insufficient to support a civil contempt finding. Ex Parte Choate, 582 S.W.2d 625 (Tex.Civ.App.—Beaumont 1979, no writ).
The appropriate drafting technique is to name the exact instrument or instruments the obligated party is required to execute and preferably attach the document to the decree or clarifying order. Further, the Texas Family Code authorizes the decree to be used as a muniment of title to transfer property interest. The careful practitioner will include the provision authorizing the filing of the decree as a muniment. The complete legal description of any real property must be set forth in the decree for such purpose.
2) Drafting language, personal property:
The following is a properly drafted order to deliver personal property at a date, time and location:
“[Name of party] is ORDERED to deliver to [name of other party] on [date] at [time] at [address] these items:
(Examples)
1. [Year and make] motor vehicle, vehicle identification number [number], together with all keys, insurance policies, registration papers, and title documents.
2. List specifically by certificate number and title, such items as certificates of deposit, stocks, bonds, business records, insurance policies, tax basis records, furniture, jewelry, art, and so forth).”
3) Drafting language, instru-ments of transfer:
(a) The following are examples of orders to deliver and execute specific documents which are enforceable and necessary (the better practice is to incorporate a form for execution in the decree):
“[Name] is ORDERED to appear in the law offices of [name of attorney] at [location], at [time] on [date], and to execute, have acknowledged, and deliver to [name] these instruments:
1. Special Warranty Deed [include if applicable: in the form attached to this Decree of Divorce as Exhibit [exhibit number/letter]];
2. Special Warranty Deed with Encumbrance for Owelty of Partition [include if applicable: in the form attached to this Decree of Divorce as Exhibit [exhibit number/letter]];
3. Real Estate Lien Note [include if applicable: in the form attached to this Decree of Divorce as Exhibit [exhibit number/letter]];
4. Deed of Trust [include if applicable: in the form attached to this Decree of Divorce as Exhibit [exhibit number/letter]];
5. Deed of Trust to Secure Assumption [include if applicable: in the form attached to this Decree of Divorce as Exhibit [exhibit number/letter]];
6. Assignment of escrow funds letter [include if applicable: in the form attached to this Decree of Divorce as Exhibit [exhibit number/letter]];
7. Assignment of insurance coverage [include if applicable: in the form attached to this Decree of Divorce as Exhibit [exhibit number/letter]];
8. Assignment of utility deposits [include if applicable: in the form attached to this Decree of Divorce as Exhibit [exhibit number/ letter]];
9. Certificate of title to motor vehicle [include if applicable: in the form attached to this Decree of Divorce as Exhibit [exhibit number/letter]];
10. Power of attorney to transfer motor vehicle [include if applicable: in the form attached to this Decree of Divorce as Exhibit [exhibit number/letter]];
11. Signature cards on custodial accounts held for the benefit of the child [include if applicable: in the form attached to this Decree of Divorce as Exhibit [exhibit number/letter]];
12. Stock transfer certificate [include if applicable: in the form attached to this Decree of Divorce as Exhibit [exhibit number/letter]];
13. Operating Trust Agreement for Jointly Owned Property after Divorce [include if applicable: in the form attached to this Decree of Divorce as Exhibit [exhibit number/letter]];
14. Security Agreement with Collateral Pledge [include if applicable: in the form attached to this Decree of Divorce as Exhibit [exhibit number/letter]];
15. Assignment of interest [include if applicable: in the form attached to this Decree of Divorce as Exhibit [exhibit number/ letter]];
(b) Caveat: if an instrument of transfer is necessary, it is very advisable to include the following language:
This decree shall serve as a muniment of title to transfer ownership of all property awarded to any party in this final decree of divorce.”
b. Alimony/maintenance
1) General discussion
Extreme care must be taken in drafting orders having to do with alimony so as to insure its collectability, and prevent its discharge in the event of bankruptcy. Alimony now is subject to contempt if adequately drafted, and appropriate language will, commencing September 1, 1999, permit alimony to be the subject of garnishment from an obligor’s wages.
Of course, we have long had the ability to agree to contractual alimony, but, with the advent of §3.9601 et seq., especially §3.609, enforcement by contempt, whether court-ordered or agreed, has become available.
Rules regarding proper drafting of alimony/maintenance payments will track those regarding child support payments, i.e. the amount, date, and place of payment must be specifically spelled out (see cases regarding child support, supra.) Unlike child support, alimony is not paid through the registry of the clerk of the court. Pursuant to Internal Revenue Service regulations, for contractual alimony to be deductible to the payor and includable by the payee, the following requirements must be met:
1. the payment must be paid in cash;
2. the payment must be received by (or on behalf of) a spouse pursuant to a divorce or separation instrument;
3. the liability to pay must be terminable upon the death of the recipient;
4. the spouses involved must not file a joint return;
5. the spouses involved must not be in the same household when the payments are made;
6. the payment is not for child support or tied to any contingency relating to a child; and
7. the instrument involved does not designate the payment as a payment not includable in gross income under section 71 and not allowable as a deduction under section 215. IRC §71.
2) Drafting language, alimony/ maintenance
A properly drafted maintenance/ alimony order is as follows:
(a) Contractual
“Purpose and Intent of Article
It is the mutual desire of the parties to provide a continuing measure of support for [name of receiving party], Receiving Party, after divorce. These support payments undertaken by [name of paying party], Paying Party, are intended to qualify as contractual alimony as that term is defined in section 71(a) of the Internal Revenue Code of 1986 ("the Code"), as amended, and are intended to be includable in the gross income of Receiving Party under section 71(a) of the Code and deductible by Paying Party under section 215(a) of the Code. All provisions of this article will be interpreted in a manner consistent with that intention.
Terms, Conditions, and Contingencies
Amount - [name of paying party] will pay to [name of receiving party] $[amount] per [period] as alimony. These payments will be payable [specify] on or before the [specify] day of each month, beginning on the first day after the date of divorce in this case. [Include if applicable: In addition, [name of paying party] will pay [directly to [name of receiving party]/to [name] for the benefit of [name of receiving party]] the following expenses as additional alimony: [specify expenses, e.g., premiums on insurance insuring life of Paying Party].]
Term
Term - The payments will be for an indefinite term and will continue until terminated in accordance with this agreement.
Or
Term - The payments will end on [date], with the last payment being due on [date], providing all payments have been made.
Receiving Party Death Contingency
Death of Receiving Party - The alimony will continue as provided above but will terminate at the death of Receiving Party. There is no liability for Paying Party to make any payments for any period after the death of Receiving Party, and there is no liability for Paying Party to make any payment in cash or property as a substitute for such payments after the death of Receiving Party.
Receiving Party Remarriage Contingency
Remarriage of Receiving Party - The alimony will also terminate at the remarriage of Receiving Party [Include if applicable: , including remarriage to Paying Party].
Other Contingencies
WARNING: Any contingencies related to children or to child support can result in nonalimony treatment by IRS.
[Other Contingencies]--The alimony will also terminate on the following contingencies: [specify other contingencies].
Paying Party Death Contingency
Death of Paying Party--The alimony will also terminate at the death of Paying Party.
Or
Claim Against Estate - If Paying Party dies before fulfilling the obligations of this article, the remaining obligations under this article will fully bind Paying Party's estate. [Include if applicable: The remaining obligation may be discharged by life insurance payable to Receiving Party equal to the sum of the then-remaining alimony payments under this article.]
Insurance
Insurance - As long as alimony is payable under this article, Paying Party will name and maintain Receiving Party as the primary beneficiary to a portion of the proceeds on the following life insurance policies: [specify name of company, policy number, fact amount of policy, and amount agreed to keep in force for each policy].
As long as alimony is payable under this article, Paying Party will keep the life insurance in full force and effect, at Paying Party's expense, in an amount sufficient to pay the sum of the then-remaining alimony payments under this article. Within thirty days after receiving written request, Paying Party will furnish written proof from the life insurance company confirming the coverage required under this article. The policies described in this paragraph will not be pledged or encumbered so as to impair Receiving Party's protection.
Payment Procedures
Payment Procedures - All alimony payments, except as provided otherwise, will be made by personal check, money order, or cashier's check payable to [name]. All payments sent by mail should be addressed as follows: [specify address] or at such other address[es] of which [name of receiving party] notifies [name of paying party] in writing. Payments will be timely made if deposited in the U.S. mail on or before the date provided for the payment under this article and if delivered to Receiving Party no more than ten days later.
Reduction of Amount of Alimony
The amount of monthly alimony then payable under this article will be terminated or reduced by the [percentage/dollar amount] indicated on the occurrence of each of the following events:[1]
1. Marriage of Receiving Party: [[percent] percent/$[amount]]
2. Sale of property located at [address]: [[percent] percent/$[amount]].
3. [Specific date or other condition]: [[percent] percent/$[amount]].
4. Disability of Paying Party to the extent that Paying Party is unable to be gainfully employed and qualifies for Social Security disability benefits (or qualifies for disability benefits under private disability insurance then in effect). The amount of reduction will be equal to the percentage of reduction in Paying Party's gross monthly income, whether taxable or not.
Intended Tax Impact
In accordance with section 71 of the Code, all alimony payments made under this article will be includable as income on Receiving Party's income tax returns beginning in calendar year [year]. In addition, those payments will be deductible on Paying Party's income tax returns in accordance with section 215 of the Code beginning in the same calendar year.
All payments made under this article are taxable to Receiving Party and includable in Receiving Party's gross income, and Receiving Party agrees to report them in Receiving Party's federal income tax return and to pay all taxes due thereon. Receiving Party agrees to furnish written assurance signed by Receiving Party and by any tax return preparer that payments made under this article have been included as income in Receiving Party's federal income tax return for the applicable year. The written assurance will be given at the time the federal income tax return is filed.
Paying Party will be entitled to deduct all payments from Paying Party's federal income tax return.
If Receiving Party fails and refuses to include the alimony payments in Receiving Party's gross income, Paying Party's obligation to make the payments will be suspended until all the amounts paid have been included in Receiving Party's gross income, at which time the payments will be resumed and Paying Party will immediately pay any amounts held in suspense.
Indemnification
If a final determination is made by the Internal Revenue Service or by a court of competent jurisdiction that the payments under this article are not deductible as alimony for any reason, then the payments due under this article will be reduced by the additional tax actually paid by Paying Party in connection with the obligation.
Nontransferability
Neither the agreement to pay alimony nor the right to receive alimony under this article is assignable or transferable.
Default and Acceleration[2]
Paying Party agrees that time is of the essence in the payment of the periodic alimony payments. If default is made by Paying Party in the prompt payment of any periodic amounts due under the terms of this agreement and the default continues for a period of more than [number] days, the entire remaining alimony obligation of Paying Party, at the option of Receiving Party, will then be accelerated and will become immediately due and payable, together with an amount sufficient to reimburse Receiving Party for any tax and/or penalty resulting from the default by Paying Party.”
(b) Court ordered
“Court-Ordered Maintenance
The Court finds that under the circumstance presented in this case, [name] is eligible for maintenance under the provisions of Texas Family Code sections 3.9601 through 3.9611. Accordingly, [name] is ordered to pay as maintenance the sum of $[amount] per month to [name], with the first payment being due on the [specify] day of [month, year], and a like amount being due on the [specify] day of [month, year], and a like amount being due on the [specify] day of [month, year], and a like amount being due on the [specify] and [specify] days of each consecutive month thereafter until the earliest of one of the following events occurs:
1. [date, not to exceed three years after date of order unless statutory extensions apply];
2. death of either Petitioner or Respondent;
3. remarriage of [name of receiving party];, or
4. further orders of the Court affecting the spousal maintenance obligation, including a finding of cohabitation by [name of receiving party].
Payment shall be made by [name] directly to [name] in the form of cash, cashier’s check, or money order at the last known address provided to [name] by [name].”
c. Child related issues
1) Child Support
(a) General Discussion
The Underlying Order must be clear, specific and unambiguous. Slavin set the standard for orders sought to be enforced: the language of the underlying order must be clear, unambiguous, and subject to only one interpretation.
(b) Command Language in Order.
Nash provides that the order which the obligee seeks to enforce, must contain a clear command to pay. See, Padron. “Decreed” means the same as “ordered”. Snow. It must, as a prerequisite, state:
“Payment dates, who to pay and where to pay.”
A start date for the child support is a minimal requirement. However, in Ex Parte Malone, 788 S.W. 2d 411 (Tex.App.—Houston (1st Dist.) 1990, no writ), the start date was recited as “November 9”, with no year stated. The Houston Court held that the decree was sufficiently specific to uphold the contempt, as a normal reading of language was that payments were to start immediately. Id. at 411.
There appears to be two line of cases dealing with failure to name a payee. In Ex Parte Payne, 598 S.W. 2d 312 (Tex.Civl.App.—Texarkana 1980, no writ), the relator complained of ambiguity in the decree because it lacked a named payee. The court of appeals stated that because the relator had previously made payments to his former wife, he was well aware of his support obligations.
“Relator is in no position to complain at this late date because even if the judgment were ambiguous, an application of the rule of construction would be to harmonize the judgment with the facts so that a common sense construction would be put upon the language as a whole. … ’where the language is susceptible to two interpretations, from one of which it follows that the law has been correctly applied to the facts and from the other, that there has been an incorrect application, that construction will be adopted which upholds the judgment’ (citing cases).”
Id. at 317. But see, Ex Parte Griffin, 712 S.W. 2d 214 (Tex.App.—San Antonio 1986, writ dism’d), wherein the court held that the failure to name a payee was a fatal flaw in the underlying order, because:
“To be a valid order sufficient to uphold the contempt judgment, the decree must spell out the details of compliance in clear, specific, and unambiguous terms so that the person will know exactly what he is ordered to do or not to do. The order cannot contain implications or conjectures or be susceptible to different means, but must be in the forms of a command. Ex Parte Hodges, 625 S.W.2d 304, 306 (Tex. 1981); Slavin. The judgment does not order relator to make child support payments to any specific person. The order merely finds that payments are to beade through the Child Support Division of the Juvenile Department. The decree…is not specific enough to be enforced by a contempt order. The order of contempt is void.”
Id. at 215-216.
At least two court of appeals cases declined to follow Griffin. In Ex Parte Parrot, 723 S.W. 2d 342 (Tex.App.—Fort Worth 1987, no writ), the Fort Worth Court of Appeals, in declining to follow Griffin, stated that the court should consider the prior order as a whole; a managing conservator had been appointed for the children in the order in question,
“with all the rights, privileges, duties and powers of a parent, to the exclusion of the other parent subject to the rights, privileges, duties and powers of a possessor conservator. TEX. FAM. CODE ANN. Sec. 14.02(b)(7) (Vernon 1986) lists the rights, privileges, duties and powers of a managing conservator. Included in the power to receive and give receipt for periodic payments for support of the child and to hold and disburse these funds for the benefit of the child. Given these facts, we do not find the order of support ambiguous and unenforceable by contempt.”
Id. at 344.
In Malone, the decree named a managing conservator and recited that the relator
“is to pay TWENTY AND NO/100 (sic) ($20.00) DOLLARS a week beginning on Friday the 9th of November and a like payment each succeeding Friday thereafter until the child reaches eighteen (18) years, or until further order of the Court, payable through the Harris County Probation Department”.
The court held that such language “adequately informs relator what he must do and when he must do it.” Id. at 412.
The better practice is to specifically state a place of payment. However, in Ex Parte Tanner, 904 S.W.2d 202 (Tex.App.—Houston (14th Dist.) 1994, orig. proceeding) the support order did not state a place of payment, and the court did not find that omission fatal. Id. at 204-205. In Tanner, the divorce decree provided that the obligor pay to the obligee “periodic child support” of $35 a week; no other command was contained in the decree. In holding that the order could be enforced by contempt, the court stated:
“Although providing a location or mailing address for payment might have been preferable, relator has cited no actual difficulty or confusion concerning Terri’s address. Moreover, the divorce decree ordered that, at the beginning of each period of possession, the children were to be surrendered to relator at Terri’s address. Then, relator had ample reason to not only know, but go to, Terri’s residence address, a place where child support payments could reasonably be made or delivered to her. Under the circumstances, we are not persuaded that a failure to specify a location for payment of child support rendered the divorce decree so ambiguous as to be unenforceable by contempt.”
Id. at 204-205.
(c) A properly worded order for the payment of child support is as follows:
“IT IS ORDERED that [name of parent paying c.s.] is obligated to pay and shall pay to [name of parent receiving c.s.] child support of $[insert monthly child support] per month, with the first payment being due and payable on ______ and a like payment being due and payable on the ______ day of each month thereafter until the first month following the date of the earliest occurrence of one of the events specified below:
1. the child reaches the age of eighteen years, provided that, if the child is fully enrolled in an accredited secondary school in a program leading toward a high school diploma, the periodic child-support payments shall continue to be due and paid until the end of the month in which the child graduates;
2. the child marries;
3. the child dies;
4. the child's disabilities are otherwise removed for general purposes; or
5. further order modifying this child support.”
(d) Appellate Findings
If the case is going to be appealed, or if either party requests it, §154.130 TFC requires the court to make the following findings:
“1. the application of the guidelines in this case would be unjust or inappropriate (if the court has varied from the guidelines);
2. the amount of net resources available to [name of parent paying] per month is $[amount];
3. the amount of net resources available to [name of parent receiving] per month is $[amount];
4. the number of children before the Court is [number];
5. the names and birth dates of all children not before the Court who reside in the same household with [name of parent paying] and/or for whom [name of parent paying] has a legal duty to pay support are as follows:
Name:
Birth date:
Name:
Birth date:
6. the amount of child-support payments per month that is computed if the percentage guidelines of section [154.125/154.129] of the Texas Family Code are applied to the first $6,000 of [name of parent paying]’s net resources is $[amount]; [and]
7. the percentage applied to the first $6,000 of [name of parent paying]’s net resources for child support by the actual order rendered by the Court is [percent] percent[; and/.]
8. the specific reasons that the amount of support per month ordered by the Court varies from the amount computed by applying the percentage guidelines of section [154.125/154.129] of the Texas Family Code are: [state reasons].”
(e) Other Considerations
(1) The decree should also generically order withholding from any employer of the obligor.
The wording is statutory and contained in §158.103 TFC. In the event of self-employment, pursuant to §157.109, the court may order cash or a bond to secure payment. A properly worded paragraph establishing the bond is :
“IT IS ORDERED that [name] shall post a cash or security bond in the amount of $[amount] and payable through the registry of the Court to [name], conditioned on [name]’s payment of past-due temporary support and future child support as ordered in this decree.”
(2) Future Expenses as support
a. If a future expense is a child related expense, e.g. medical insurance for the child, medical reimbursement for the child, travel expense, tuition, summer camp, attorney’s fees, or any other child related expense, care should be taken to refer to the payment as further support for the child so as to enhance the ability to call upon the contempt powers of the court in order to enforce the order.
b. Examples of properly drafted order of language as further support:
i) Health Care.
“IT IS ORDERED that medical support shall be provided for the child[ren] as follows:
[Name of obligor]'s Responsibility - It is the intent and purpose of this decree that [name of child-support obligor] shall, at all times, provide medical support for the child[ren]. IT IS THEREFORE ORDERED that, as additional child support, [name of obligor] shall provide medical support for the parties' child[ren], for as long as child support is payable under the terms of this decree, as set out herein.
ii) School Expenses
“As additional child support, [name of obligor] is ORDERED to pay _____ percent of all reasonable education expenses incurred to send [the/each] child either to college or to technical, vocational, or business school, provided the child is a full-time [define specifically] and maintains at least a “C” or equivalent grade point average toward the completion of either a college bachelor’s degree or a technical, vocational, or business school diploma. This obligation includes tuition, activities fees, laboratory fees, books, room and board, health insurance and related uninsured health-care expenses, college [fraternity/sorority/fraternity or sorority] dues and expenses, and other charges normally related to such education. This obligation may be enforced by the parties or the child. This obligation will terminate at [specify date or contingency]. [Include provisions about when, where, and to whom payments are to be made and remedies if they are not made.]
As conditions for payment of this obligation, (a) the grades of the child must be reported to [name] within ten days after they are received, and [name] must receive a photocopy of any report card issued by the school; (b) [name] must have the right at any time to contact the school to obtain current information on the grades and status of the child; and (c) the child must authorize the school to release that information to [name].”
iii) Long Distance Travel
“Additional Provisions for Long-Distance Access and Visitation
IT IS ORDERED that, until a child reaches the age of five years, the following arrangements for the travel of that child shall control:
Surrender at [possessory conservator]'s Residence - Adult to Accompany Child.
Adult to Accompany Child - IT IS ORDERED that [possessory conservator] shall travel with the child between the residence of [sole managing conservator] and that of [possessory conservator] at the beginning of each period of possession. IT IS FURTHER ORDERED that [sole managing conservator] shall travel with the child between the residence of [possessory conservator] and that of [sole managing conservator] at the end of each period of possession. In place of this requirement, each conservator is authorized to designate a responsible adult known to the child to travel with the child between the residences of the parties. IT IS FURTHER ORDERED that the child shall not travel alone between the residence of [possessory conservator] and that of [sole managing conservator] until the child reaches the age of five years.
Return to Managing Conservator's Residence - Adult to Accompany Child.
Adult to Accompany Child - IT IS ORDERED that [possessory conservator] shall travel with the child between the residence of [sole managing conservator] and that of [possessory conservator] at the beginning and end of each period of possession. In place of this requirement, [possessory conservator] is authorized to designate a responsible adult known to the child to travel with the child between the residence of [sole managing conservator] and that of [possessory conservator]. IT IS FURTHER ORDERED that the child shall not travel alone between the residence of [sole managing conservator] and that of [possessory conservator] until the child reaches the age of five years.
Surrender at [possessory conservator]'s Residence - Expenses.
Expenses Shared by [possessory conservator] and [sole managing conservator] - IT IS ORDERED that [possessory conservator] shall pay all travel expenses, charges, escort fees, and air fares incurred for the child for transportation from the residence of [sole managing conservator] to that of [possessory conservator]. IT IS FURTHER ORDERED that [sole managing conservator] shall pay all travel expenses, charges, escort fees, and air fares incurred for the child for transportation from the residence of [possessory conservator] to that of [sole managing conservator].
Return to Managing Conservator's Residence - Expenses.
Expenses Paid by [possessory conservator] - IT IS ORDERED that [possessory conservator] shall pay all travel expenses, charges, escort fees, and air fares incurred for the child from the time [possessory conservator] takes possession of the child from [sole managing conservator] at the beginning of a period of possession until the time [possessory conservator] returns the child to the possession of [sole managing conservator] at the end of the period of possession.
Child 5 Years of Age or Older.
IT IS ORDERED that the following provisions shall govern the arrangements for the travel of the child to and from [possessory conservator]*[ after the child reaches the age of five years]*.
Surrender at [possessory conservator]'s Residence.
Notice of Place and Time of Possession - IT IS ORDERED that, if [possessory conservator] desires to take possession of the child at an airport near [possessory conservator]'s residence, [possessory conservator] shall state these facts in a notice letter to [sole managing conservator]:
(a) the airport where [sole managing conservator] is to surrender the child;
(b) the date and time of the flight on which the child is scheduled to leave; and
(c) the airline and flight number of the airplane on which the child is scheduled to leave.
IT IS FURTHER ORDERED that, if [sole managing conservator] desires to take possession of the child at an airport near [sole managing conservator]'s residence, [sole managing conservator] shall state these facts in a notice letter to [possessory conservator]:
(a) the airport where [possessory conservator] is to surrender the child;
(b) the date and time of the flight on which the child is scheduled to leave; and
(c) the airline and flight number of the airplane on which the child is scheduled to leave.
Return to Managing Conservator's Residence.
Notice of Place and Time of Possession - IT IS ORDERED that, if [possessory conservator] desires to take possession of the child at an airport near [possessory conservator]'s residence, [possessory conservator] shall state these facts in a notice letter to [sole managing conservator]:
(a) the airport where [sole managing conservator] is to surrender the child;
(b) the date and time of the flight on which the child is scheduled to leave;
(c) the airline and flight number of the airplane on which the child is scheduled to leave;
(d) the airport where the child will return to [sole managing conservator] at the end of the period of possession;
(e) the date and time of the flight on which the child is scheduled to return to that airport; and
(f) the airline and flight number of the airplane on which the child is scheduled to return to [sole managing conservator] at the end of the period of possession.
Flight Arrangements.
Flight Arrangements - IT IS ORDERED that [possessory conservator/sole managing conservator/each conservator] shall make airline reservations for the child only on major commercial passenger airlines on flights having no change of airplanes between the airport of departure and the airport of final arrival (a "nonequipment change flight"). IT IS FURTHER ORDERED that [possessory conservator/sole managing conservator/each conservator] shall make airline reservations for the child on flights that depart from a commercial airport near the residence of [possessory conservator/sole managing conservator] that offers regularly scheduled passenger flights to various cities throughout the United States on major commercial passenger airlines.
[Delivery/Delivery and Pickup] by [sole managing conservator].
[Delivery/Delivery and Pickup] by [sole managing conservator] - IT IS ORDERED that [sole managing conservator] shall deliver the child to the airport from which the child is scheduled to leave at the beginning of each period of possession at least one hour before the scheduled departure time. IT IS FURTHER ORDERED that [sole managing conservator] shall surrender the child to a flight attendant who is employed by the airline and who will be flying on the same flight on which the child is scheduled.
IT IS FURTHER ORDERED that [sole managing conservator] shall take possession of the child at the end of [possessory conservator] period of possession at the airport where the child is scheduled to return and at the specific airport gate where the passengers from the child's scheduled flight disembark.
[pickup/pickup and return] by [possessory conservator].
[pickup/pickup and return by [possessory conservator] - IT IS ORDERED that [possessory conservator] shall take possession of the child at the beginning of each period of possession at the airport where the child is scheduled to arrive and at the specific airport gate where the passengers from the child's scheduled flight disembark.
IT IS FURTHER ORDERED that [possessory conservator], at the end of each period of possession, shall deliver the child to the airport where the child is scheduled to depart at least one hour before the scheduled departure time and surrender the child to a flight attendant who is employed by the airline and who will be flying on the same flight on which the child is scheduled to return.
Missed Flights.
Missed Flights - IT IS ORDERED that any conservator who has possession of the child at the time shall notify the other conservator immediately if the child is not placed on a scheduled flight at the beginning or end of a period of possession. IT IS FURTHER ORDERED that, if the child should miss a scheduled flight, the conservator having possession of the child when the flight is missed shall schedule another nonequipment change flight for the child as soon as is possible after the originally scheduled flight and shall pay any additional expense associated with the changed flight and give the other conservator notice of the date and time of that flight.
[possessory conservator]'s Residence.
Expenses Shared by [possessory conservator] and [sole managing conservator] - IT IS ORDERED that [possessory conservator] shall purchase in advance the airline tickets (including escort fees) to be used by the child for the child's flight from the airport near the residence of [sole managing conservator] to the airport near the residence of [possessory conservator]. IT IS FURTHER ORDERED that [possessory conservator] shall make the necessary arrangements with the airlines and with [sole managing conservator] in order that the airline tickets are available to the child before a scheduled flight. IT IS FURTHER ORDERED that [sole managing conservator] shall purchase in advance the airline tickets (including escort fees) to be used by the child for the child's flight from the airport near the residence of [possessory conservator] to the airport near the residence of [sole managing conservator]. IT IS FURTHER ORDERED that [sole managing conservator] shall make the necessary arrangements with the airlines and with [possessory conservator] in order that the airline tickets are available to the child before a scheduled flight.
Return to [sole managing conservator]'s Residence.
Expenses Paid by [possessory conservator] - IT IS ORDERED that [possessory conservator] shall purchase, in advance, the round-trip airline tickets (including escort fees) to be used by the child for the child's flight. IT IS FURTHER ORDERED that [possessory conservator] shall make necessary arrangements with the airlines and with [sole managing conservator] in order that the airline tickets are available to the child before a scheduled flight. IT IS FURTHER ORDERED that [possessory conservator] shall pay any other traveling expenses and charges incurred for the child from the time [sole managing conservator] surrenders possession of the child by placing the child on the scheduled nonequipment change flight at the beginning of a period of possession until the time [sole managing conservator] takes possession of the child at the termination of the scheduled nonequipment change flight at the end of the period of possession. IT IS FURTHER ORDERED that [possessory conservator] shall reimburse [sole managing conservator] for travel expenses of the child if, because of circumstances beyond [sole managing conservator]'s control, [sole managing conservator] is required to pay travel expenses of the child on a nonequipment change flight to or from the possession of [possessory conservator].
Miscellaneous Expenses.
Miscellaneous Expenses - IT IS ORDERED that the expenses of a conservator incurred in traveling to and from an airport, as well as related parking and baggage-handling expenses, are the sole responsibility of the conservator delivering or receiving the child at the airport.
International Travel.
Each party is ORDERED to provide the other party appropriate written authorization, within ten days after written request is received, as is necessary to allow the child[ren] to travel with the other party beyond the territorial limits of the United States. The parties are ORDERED to exchange passports as is necessary to allow such travel.*[ The parties agree and IT IS ORDERED that this decree shall serve as written authorization for such travel.”
iv) Summer Camp
“As additional child support, subject to approving the choice of camp, [name] is ORDERED to pay all necessary charges, including transportation and uniforms, for [name[s] of child[ren]] to attend summer camp for a period not to exceed [number] weeks per year. [name] must be consulted about [his/her] choice of camp and will not unreasonably withhold [his/her] consent about the choice of camp.”
v) Attorney’s Fees
“The court finds that [name] has incurred $[amount] as attorney’s fees, which were necessary as support for [name] and the child[ren] the subject of this suit]. IT IS ORDERED that [name of attorney] is awarded a judgment of $[amount] against [name] as attorney’s fees and expenses, with interest at [percent] percent per year compounded annually from date of signing of this Final Decree of Divorce until paid, for which let execution issue.”
IV. Clarification
§157.421 specifically authorizes the trial court on its own motion or the motion of a party to clarify an order so as to make it specific enough to be enforced by contempt.
V. FINDINGS
Where applicable, your decree should contain specific findings that support the court determination. Here are some suggested examples:
· Basis of jurisdiction if one party is out of state.
· Basis of disproportionate property division.
· Reasons for support order varying from guidelines.
· Basis of child support award if: i) payor is self-employed, or found to be intentionally underemployed or unemployed; ii) the court assigns deemed income; or if there is no evidence of payor’s wages and salary income. [Tex.Fam.Code §154.068]
· Reasons periods of possession vary from Standard Possession Order.
· If a parent will not be appointed a Joint Managing Conservator, that the presumption has been rebutted.
· If only a non-parent will be appointed managing conservator, that appointment of a parent would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development. [Tex.Fam.Code §153.131]
· If a parent will not be appointed a possessory conservator, that appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child. [TexFam.Code §153.191]
· If a parent will only have supervised or restricted periods of possession, that the restrictions or limitations are in the best interest of the child, that the restrictions or limitations do not exceed those required to protect the best interest of the child, and the reasons for both of those findings.
· In a temporary support order, if a presumed father is contesting paternity, the basis of the presumption and citation to the statute authorizing the order of support. [Tex.Fam.Code §151.002; §160.004]
· If party is to make payments, a finding (if applicable) that the payments should be made from a specific source in existence (ie: bank account; proceeds from sale of non-homestead or personal property).
· If property is homestead, so state as a finding.
· If retroactive child support ordered, basis of award. [Tex.Fam.Code §154.009; §154.131]
· If standing has been an issue, state the specific section upon which court has granted as a finding.
· Specific finding that husband and wife are the biological parents of the child(ren).
· If alimony is ordered, specific findings in support of award. [Tex.Fam.Code §8.001 - §8.006]
· If disabled child(ren), specific findings in support of continuing child support award.
· In a contempt order, that Respondent was duly advised of his constitutional rights, as applicable, and waived each of them.
· In a contempt order, make findings as to each charge, and separately fix the punishment for each act. If any portion of order is void, it can then be severed, and valid portion will remain intact.
· If an ex parte protective order is issued, that the Court finds from the information contained in the application that there is a clear and present danger of family violence.
· If a protective order is issued, that family violence has occurred and that family violence is likely to occur again in the future.
· If characterization of an asset has been an issue, the basis for determining that it is a party’s separate property or is community property.
· If debt incurred for necessaries of other spouse or child, and other spouse is to pay, finding that debt was for necessaries and covered within such spouse’s obligation to support.
· Finding that debt not incurred as agent of spouse, and that the debt was not for necessaries for the other spouse.
· If abduction is a possibility, that certain individuals have notice of the entry of the order.
VI. GENERAL TIPS
1. Anticipate problems that will arise in future enforcement. Always assume the decree is not going to be followed. Then you’ll be prepared to carry it out when it is not.
2. Listen to court and counsel.
3. Check pleadings and what was actually tried.
4. Be aware of generally accepted divorce provisions in the code and in your court.
5. Remember to tell the other side and the court “I’ll prepare the order.”
[1] Warning: The only exceptions to the excess alimony recapture rules that apply during the first three postseparation years are death and remarriage. Disability is not an exception to the recapture rule.
[2] Warning: Acceleration before three calendar years may create a recapture problem. |