Get What’s Yours: A Texan’s Roadmap to Enforce a Divorce Property Order

In theory, a divorce is final once the judge signs the decree, which should bring some sense of relief. For many divorcing couples, the court will assign specific conditions each party must complete, including how to divide the marital property. 

Unfortunately, many property orders can be ambiguous, making them difficult to interpret and even easy to circumvent. This article is your roadmap to ensuring your property order is legally enforced.

In This Article:

• • What is “property” to the court?
  • What issues tend to complicate the process?
  • What if the property order is missing an asset?

 

What is “property” to the court?

While the property award outlined in a divorce decree may not come as a complete shock, the court’s handling of the asset division isn’t information that’s been previously disclosed in any official determining sense. 

Texas is considered a community property That means any property owned and acquired during a marriage is classified as community property. Community property refers to everything you and your spouse acquired together during the marriage and is subject to a just and right division during divorce proceedings. 

The court also considers each party’s separate property, or what they owned before entering into a marriage. 

Whether separate or community, property that is owned, earned, inherited, or gifted can include but is not limited to:

• Houses or land
• Vehicles
• Money 
• Life insurance policy
• Retirement accounts (ex. Pension, 401(k), profit sharing, stocks)

While some assets are relatively straightforward, others are not. For instance, it likely won’t take as long to transfer a vehicle title as it might to sell a house. These are examples of tangible personal properties. 

However, an asset like a retirement account – in many cases, one of the most valuable divorce assets – is unlikely to be liquidated at the time of your divorce. There are means of dividing retirement accounts upon divorce, which include the preparation and entry of a Qualified Domestic Relations Order. This is an additional order that is required under the Employee Retirement Income Security Act of 1974 (ERISA), the federal laws governing retirement accounts. This kind of asset is considered intangible property (because you cannot physically touch it). How divorced parties navigate the distribution of more complicated assets, whether tangible or intangible, is dictated by the Family Code, federal law, time limits, and statute of limitations. 

What issues tend to complicate the process? 

The most common problems in property division cases involve valuation. Parties may have very different ideas about a particular property’s worth. Many times, property must be appraised by an independent appraiser before its value may be determined.

Once a divorce decree containing a property division is finalized, you cannot rewrite history. State law bars judges from changing the original agreement or ruling regarding who gets what. 

“A court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment.” Tex. Fam. Code § 9.007(a) 

Such action is beyond the power Texas grants to divorce courts. Tex. Fam. Code § 9.007(b)

The court can only help ensure the initial deal is followed or clarify how it should be followed through enforcement, clarification, or implementation. 

One Side Refuses To Do What The Court Says

If one party isn’t following the original property division agreement, the affected party can file a motion to enforce property division. An enforcement order can help put pressure on the offending party to comply with the provisions outlined in the divorce decree. 

The offending party will receive a citation and be required to file a written answer with the court or receive a default judgment if they don’t. Tex. Fam. Code §9.001(c), 9.006, 9.007

An enforcement order in Texas must include:

• Which provisions need enforcement
• The acts or omissions affecting the order
• How the respondent has not complied
• The relief requested by the court

The court has a number of legal remedies to enforce compliance.

Money Judgment

If a party fails to comply with the divorce decree and a property award is no longer available or able to be delivered, the court may render a monetary judgment for the damages caused by the failure to comply. Tex. Fam. Code §9.010 Let’s look at a couple of cases where this occurred:

Case 1: Judgment for Missing Coins

In 1990, Billie Reynolds was awarded various gold and silver coins in the divorce from her husband, Kenneth Reynolds. When Kenneth did not hand over the coins as the decree ordered, Billie took him back to court.

A Dallas judicial district court, in 1991, ordered Kenneth to deliver the coins or face a monetary judgment:

“Respondent [Kenneth] is ORDERED to deliver all [coins] listed in his Inventory filed with the Court on October 11, 1990, to [Billie] on or before December 2, 1991. IT IS FURTHER ORDERED that should [Kenneth] fail to deliver said items to [Billie] by December 2, 1991, then this Court shall award a judgment to [Billie] for the value of the items not delivered.” Reynolds v. Reynolds, 860 S.W.2d 568 

Case 2: Judgment for Depleted Retirement Accounts

In a more recent case, Gomez v. Gomez, the Texas Eighth District Court of Appeals, held that a lower court properly entered a monetary judgment against the ex-husband to enforce the divorce decree’s property division order. 

In this case, the trial court awarded Susana Gomez 50 percent of Hector Gomez’ retirement accounts. It was later discovered that Hector withdrew and spent retirement funds while the divorce was still pending, thus violating the court order. The ex-wife filed a suit to enforce the property division, and the court entered a money judgment against the ex-husband, finding that the judgment did not alter or change the division of community property in the divorce decree.

“…we conclude that under these circumstances Susana was entitled to seek, and the trial court was authorized to render, a money judgment as enforcement of the property division in the divorce decree.” Gomez v. Gomez, 632 S.W.3d 4  

Any party who has not received payments of money as awarded in a divorce may petition for a judgment against the defaulting party for the amount of unpaid payments.

Note that if an ex-spouse has filed for bankruptcy, claiming the payments awarded in a divorce as a dischargeable debt, the spouse must apply to the bankruptcy court to determine that the obligation is not subject to discharge by establishing that it is a divorce-related debt. U.S.C. §§ 341(a), 523(c)1

A money judgment rendered by a court to enforce a division of property is enforceable by any means available to enforce a judgment on a debt. § 9.010(d)

Qualified Domestic Relations Order 

A suit seeking a Qualified Domestic Relations Order (QDRO) applies to a previously divided pension, retirement plan, or other employee benefit. It allows the plan to shift benefits from one account to another. 

A petition for a QDRO is treated as an original lawsuit, governed by the Texas Rules of Civil Procedure. 

Note: A QDRO can only be filed as a separate suit at the time of divorce or 30 days after. 

They Could Be Held In Contempt

When a party directly disobeys a court order, they can be held in contempt. An attorney will file a motion to begin the legal process in a family law case. If the court finds a person has indeed failed to comply with the specific terms of the court’s order, the court can impose various penalties, including incarceration.  An order to deliver specific property or award a right to future property may be enforced by contempt. Contempt is generally the most effective enforcement remedy because the power enables courts to persuade the party to obey a prior order or decree. 

The Property Division In The Divorce Decree Is Confusing

A clarification order is used to specify more precisely the manner of carrying out the property division. A clarification order can resolve ambiguities in the divorce decree.  Either party can make this request, or the court can render the order. Clarifying orders may be useful when the decree doesn’t stipulate specific actions one party needs to take to fulfill the original property division order. Tex. Fam. Code §9.008

Generally, the court must find the provision vague or ambiguous to issue a clarifying order because the terms of the provision can be subject to more than one reasonable interpretation. 

Both Sides Need A Little More Guidance From The Court

Think of an implementation order as a way to guide both parties when carrying out a property division order. This is less harsh than an enforcement or a clarification order. 

Time Limits Can Further Complicate Orders

There are certain timelines the divorced parties need to adhere to in order to remain in good standing with the court. 

Implementation Waiting Period 

Newly divorced parties are instructed to wait 30 days before acting on the property division orders outlined in a divorce decree. During this waiting period, the court still has complete power to correct, modify, or vacate a judgment. In legal terms, this is called “plenary power.” Once the 30-day timeframe ends, the parties can take steps to ensure any tangible and future properties are transferred. 

Personal Tangible Property

For the division of tangible personal property that existed during the divorce or appeal, parties have two years after the divorce decree is signed to file any lawsuits seeking to enforce or clarify a property order.

Future Property

For future property that did not exist in any sort of tangible form at the time of divorce, a similar rule applies. You either have two years after the property matures or two years after your divorce is final to file an enforcement order to divide the property – whichever comes later.

What if the property order is missing an asset?

Existing property that was left off the original property order is ineligible for enforcement proceedings. The court cannot enforce the division of such property in the same manner as it could for property included in the original divorce decree.

Instead, you and your ex hold the undivided property as tenants in common, a form of ownership where each of you has an undivided property interest. 

A frequent tenancy in common scenario involves ex-spouses who own tangible property together. Suppose either party wants to divide this undivided property. In that case, they must initiate a separate lawsuit, known as a post-divorce partition suit. This mechanism allows a former spouse to invoke the courts’ authority to divide as-yet-undivided property under the same “just and right” standard that applies in divorce. 

In a post-divorce partition suit, the burden is on the party seeking the division to prove that the property was actually community property. It’s important to note that if the property was not divided because it’s been considered separate, it may not be litigated in a post-divorce suit. 

We Can Help You Enforce Your Property Order

Robinson & Henry’s Texas Family Law team is here to help you meet deadlines and get what’s yours out of your divorce. Call 214-844-3775 to schedule a consultation today.