Awaiting court date

[wordy68]

What is the name of your state (only U.S. law)? TX
NCP is in arrears 6500 dollars to date. AG has sent this to "enforcement" and have me calling in to check status and to be given my court date. NCP has been out of work for 11 months. I suspect he may be working under the table, because even when he was working FT, he and his wife struggled to make ends meet. (at least this is what I was told.) I have no real basis for this suspicion other than the fact that I am baffled that they can keep a house (which unfortunately for me, still has my name on the mortgage), keep 3 cats and 3 dogs, 2 cars and live off of her income. My question is this...how do I prepare for this court date? Do I even have to? Will the children be represented by the AG or will I need to speak? Should I bring anything? I, of course, have no idea whether or not he has contacted the AG office to claim hardship, but I will say that a rep from there insinuated that they only just recently have become aware of his situation. Should I anticipate that he will just be admonished and given a lower support payment? Rep at AG office also told me that if I continued to push this issue, even if he is not given jail time at this first court hearing, eventually, he WILL go to jail. I wish to pursue this until he is making regular payments again. Do I need to do anything or just let the wheels turn?
I know it probably seems like I am asking you to look into your crystal ball at this point, but I would appreciate any sort of insight based on your knowledge.

 

[TheGeekess]

What is the name of your state (only U.S. law)? TX
NCP is in arrears 6500 dollars to date. AG has sent this to "enforcement" and have me calling in to check status and to be given my court date. NCP has been out of work for 11 months. I suspect he may be working under the table, because even when he was working FT, he and his wife struggled to make ends meet. (at least this is what I was told.) I have no real basis for this suspicion other than the fact that I am baffled that they can keep a house (which unfortunately for me, still has my name on the mortgage), keep 3 cats and 3 dogs, 2 cars and live off of her income. My question is this...how do I prepare for this court date? Do I even have to? Will the children be represented by the AG or will I need to speak? Should I bring anything? I, of course, have no idea whether or not he has contacted the AG office to claim hardship, but I will say that a rep from there insinuated that they only just recently have become aware of his situation. Should I anticipate that he will just be admonished and given a lower support payment? Rep at AG office also told me that if I continued to push this issue, even if he is not given jail time at this first court hearing, eventually, he WILL go to jail. I wish to pursue this until he is making regular payments again. Do I need to do anything or just let the wheels turn?
I know it probably seems like I am asking you to look into your crystal ball at this point, but I would appreciate any sort of insight based on your knowledge.

Go to every court hearing regarding your case. Be prepared to answer questions. Know how the OAG works.
https://www.oag.state.tx.us/cs/

 

[single317dad]

Have you checked your credit report to make sure he's still paying the mortgage? That's not legally relevant unless it's included in the divorce decree, but something I'd definitely be doing.

 

[wordy68]

In regards to the mortgage, the decree states this:
It is ordered and decreed that the husband, shall pay, as part of the division of the estate of the parties, and shall indemnify and hold the wife and her property harmless from any failure to so discharge these items:
The balance due, including principal, interest, tax, and insurance escrow, on the promissory note executed on blah blah blah, and secured by deed of trust on the real property awarded in this decree to the husband and wife, which is recorded in the Deed of Trust Records in Williamson County, Texas.
All encumbrances, ad valorem taxes, liens, assessments, or other charges due or to become due on the real and personal property awarded to the husband in this decree unless express provision is made in this decree to the contrary.

Later in the decree, there is a paragraph titled "indemnification." This is the part that I am not sure I fully understand. Does it not mean that any sort of trouble he gets into in regards to the house payment, should not affect me and if it does, he would be responsible for that?

 

[wordy68]

and to answer your question, no, I have not pulled up my credit report, but I will be doing that now.

 

[single317dad]

Here's a decent explanation of the issue:

http://www.divorceinfo.com/indemnity.htm

http://bothwelllegal.com/legal-blog/divorce-and-the-upside-down-house/

This link is about taxes, but gives you an idea of what indemnification is and is not:

http://www.srr.com/article/taxing-side-divorce-innocent-spouse

The important part to understand is that it's binding only between the two parties (the husband and the wife in this case), and not any third parties (mortgage holder). The "indemnify and hold harmless" language gives you legal recourse against him if he injures you by not fulfilling his court-ordered obligations on the house; however, it does not free you from your obligations to the mortgage company.

 

[wordy68]

Here's a decent explanation of the issue:

http://www.divorceinfo.com/indemnity.htm

http://bothwelllegal.com/legal-blog/divorce-and-the-upside-down-house/

This link is about taxes, but gives you an idea of what indemnification is and is not:

http://www.srr.com/article/taxing-side-divorce-innocent-spouse

The important part to understand is that it's binding only between the two parties (the husband and the wife in this case), and not any third parties (mortgage holder). The "indemnify and hold harmless" language gives you legal recourse against him if he injures you by not fulfilling his court-ordered obligations on the house; however, it does not free you from your obligations to the mortgage company.

Just pulled my credit reports. All in good standing EXCEPT for the house. The house seems to be 90 days in arrears. When you say that it gives me legal recourse against him, what does that mean? What can I do??
I'm really nervous that he is going to go into foreclosure BEFORE I get a court date.

 

[single317dad]

Just pulled my credit reports. All in good standing EXCEPT for the house. The house seems to be 90 days in arrears. When you say that it gives me legal recourse against him, what does that mean? What can I do??
I'm really nervous that he is going to go into foreclosure BEFORE I get a court date.

Be forewarned that some credit reports only show "90+ days" as the longest possible delinquency. Some will show "90+ days" until they reach 180+ days. Still others will roll from 90 to 120 after a month. So it MAY be more than 90 days overdue. Since you are still a party to the mortgage, you can call the bank and get the exact details.

Anything you can do will be through the court. Don't take some friend's advice to "go over there and tell him he has to get his stuff out, then you can move in". Not that you're doing that; I just want to steer you away from nonsense right off the bat. Even if foreclosure is started on the loan, there is still quite a bit of time to get things straightened out before they go so far as to seize the property. Keep in mind though that the record of the bank suing all parties on the loan for foreclosure is a public record and may be viewed by others, if that's the sort of thing that irks you.

You should petition the court to enforce its order. You ask that he be held in contempt for violating the order, and the court will likely order him to show cause why he should not be held in contempt for his actions. Expect a fairly lengthy process. The court has the power to assess penalties to people who willfully ignore its orders, but if he's unable to pay you may find that the court's actions are not very satisfying to you. You can get a damage award against him and have him ordered to pay this or that until the cows come home, but if he has no money, you'll get no money. At this point I would try to convince the court to order him (and you) to sell the property, since he obviously can't pay for it and he's causing you injury through his actions.

You should probably consult with a local attorney who knows exactly how the local legal system works, and can advise you much more specifically than an internet forum.

 

[wordy68]

Sounds like good advice. He is also 6500 in child support arrears to our children and I'm waiting for a court date to be set by the AG. A sale of that house could get us out of this mess with the mortgage company, get him caught up with child support AND still leave him a very decent nest egg to start over. Is this something I can bring up at this coming court date or do I need to file a separate petition?

 

[single317dad]

The court will generally only hear matters already before it, and won't allow more issues to be brought up at the time of the hearing by the litigants. Courts sometimes run on a pretty tight schedule, and at any rate can't give unlimited time to each case. Also complicating the matter will be the AG's involvement; they won't want to be in the middle of your other civil actions, which are unrelated to them. They're on a schedule also. You could petition the court separately and ask that the hearings be held consecutively if possible, but don't get your hopes up too high.

 

[wordy68]

Understood. Thank you!!

 

[wordy68]

I would like to petition the court to force sale of the house...but is it also an option to put a lien against the house??