Enforcement of Property Division in Texas

A divorce decree that divides the marital estate is a court order. When a party fails to comply with that order, whether by refusing to transfer property, failing to refinance a mortgage, declining to execute a deed, or not dividing a retirement account as required, enforcement is available through Texas courts. Property division enforcement is procedurally distinct from other types of family law enforcement, and the available remedies differ depending on the type of obligation involved.

This page addresses enforcement of property division under Texas law. For related post-decree enforcement, see our enforcement of possession and access orders page. Our full family law solutions page provides an overview of all the family law services we offer.

Types of Property Division Obligations

Divorce decrees impose a range of property-related obligations on the parties. The most common include:

Each of these obligations has a different enforcement mechanism depending on whether the obligation is to perform an affirmative act, to pay money, or to refrain from disposing of an asset.

Contempt for Failure to Perform an Affirmative Obligation

When the divorce decree requires a party to take an affirmative action, such as executing a deed, refinancing a loan, or transferring a business interest, and that party refuses to comply, contempt of court is available as an enforcement mechanism. A party found in contempt for failure to perform an affirmative obligation in a property division can be confined until they comply.

The critical limitation on contempt for property division is that Texas courts have generally held that the payment of money is not enforceable by contempt in a civil context. A party who owes an equalizing payment cannot be jailed for failing to pay it the way a child support obligor can be jailed for nonpayment of support. This distinction has been interpreted and applied differently across different types of obligations and in different courts, and the analysis depends on how the decree is drafted.

Money Judgments for Property Division Obligations

For monetary obligations under a divorce decree, a money judgment is the primary enforcement vehicle. Texas courts can enter a judgment for unpaid equalizing payments and other monetary obligations, and that judgment can be enforced through the full range of judgment collection tools available under Texas law, including:

• Abstract of judgment filed in any county where the debtor owns real property, creating a lien against that property
• Writs of execution to levy on non-exempt personal property
• Garnishment of non-exempt financial accounts
• Post-judgment discovery to identify assets available for collection

Texas’s homestead and personal property exemptions apply in the context of judgment collection, but they do not eliminate the ability to collect. A thorough post-judgment asset investigation can identify property that is available to satisfy the judgment.

Clarification Orders

Before an enforcement action can proceed, the decree must be clear and specific enough to be enforced. Texas courts have held that a decree that is ambiguous on its face cannot support a contempt finding, because a party cannot be held in contempt for failing to comply with an obligation that was not clearly stated.

When a decree is ambiguous or incomplete in its description of how property is to be divided, a clarification order is available under Texas Family Code Section 9.008. A clarification order cannot change the substantive division of property, but it can specify the steps required to carry out the division as originally ordered. Clarification is a distinct proceeding from modification, and the distinction matters: a court that clarifies a decree is effectuating the original order, while a court that modifies it is changing the parties’ rights.

Enforcement Orders for Specific Assets

Texas Family Code Chapter 9 provides specific procedures for post-decree enforcement of property division. Courts can enter enforcement orders that:

• Award a party the right to receive the other party’s share of a specific asset if the obligated party refuses to transfer it
• Order the clerk of the court to execute a deed or transfer document on behalf of a non-compliant party
• Award additional property from the community estate to compensate a party for a loss resulting from the other party’s failure to comply with the decree

The ability to award substitute property or additional property is a significant remedy. If one spouse was awarded specific property under the decree and the other spouse disposed of it in violation of the order, the court can compensate the harmed spouse from other available assets.

Division of Retirement Accounts and QDROs

Retirement accounts awarded in a divorce are divided through qualified domestic relations orders (QDROs) for ERISA-governed plans, or through similar orders for non-ERISA plans. A QDRO is a separate court order that instructs the plan administrator to divide the account in accordance with the divorce decree.

Preparing a QDRO requires knowledge of the specific plan’s requirements, because each plan has its own rules governing what a QDRO must contain. Many plan administrators will reject a QDRO that does not comply with their specific requirements, and the parties must then amend and resubmit the order. Delays in preparing or submitting a QDRO can create risk: if the plan participant dies or the account loses value in the interim, the alternate payee may bear the loss.

When one party refuses to sign or cooperate with the preparation of a QDRO after the decree is entered, enforcement is available through contempt and through the court’s authority to enter orders effectuating the division over the non-compliant party’s objection.

Deadlines and the Importance of Timely Enforcement

Property division enforcement actions are subject to statutes of limitations that can extinguish rights if not timely asserted. Texas Family Code Section 9.003 provides that an action to enforce the division of tangible personal property must be brought within two years of the date the decree was signed or the date it should have been confirmed as final. Actions involving real property division have their own limitation periods under general Texas law.

These deadlines are strict. A party who sits on their rights while the other party refuses to comply may ultimately lose the ability to enforce the decree at all. Prompt action after a violation is identified is essential. If you believe the other party is not complying with the property division in your decree, contact legal counsel without delay.For a full overview of our post-decree and enforcement work, visit our family law solutions page.