The Motion to Enforce is one of two ways to get help
from the Court if the other party has failed to obey an earlier order.
(For example, your ex-spouse has not paid marital debts, is not letting
you visit your children, or is not paying child support, as ordered.) Your
other choice is to file a Motion for Contempt
.
If you don't understand the difference, or which type of motion
to file, go back to
Before
You Start. If you decide on a Motion to Enforce, follow
these steps.
Get the forms packet for Motion To Enforce from the District Court
clerk or click on the box at the right. Read the instruction
page with care. Review the
judgment in your case, along with any later court orders that changed
the original judgment. Be sure your Motion is clear about which order, and
which part of that order, you are trying to enforce.
Be prepared to pay these costs:
Service: $20.00 or
more
Filing: $60.00
Mediation: $80.00 per person
Note: If your only issue is enforcing payment of child
support, you don't have to pay a filing fee or mediation fee (if mediation
is ordered).
You may request a fee waiver if you have a low income and cannot pay the
fees. Ask the clerk for an Application to Proceed Without Payment of
Fees and Indigency Affidavit. Fill these out along with the
other court forms. The clerk,
or a notary public,
must witness your signing the
affidavit.
If you need help with filling out these forms, go to our page on
Court
Fee Waivers.
If you receive TANF, SSI or general assistance, the court should waive the fees.
Contact Pine Tree Legal Assistance if you are denied.
Get the forms and file them in the Court that gave the original
judgment.
In some situations, you may be able to move to another Court, but you would
probably need a lawyer to help you do that.
| Step Two: Complete the Forms |
To
complete the top part of each form, copy from your original
judgment or prior order. The location, docket number, and names of
plaintiff and defendant
stay the same. If you can't find your old judgment, you can buy a copy
from the clerk.
On the Motion form, if you are asking for enforcement of child support
only, check the box under the words “Motion to Enforce.” Next,
check the box to show whether you are the
plaintiff or defendant.
Then fill in the date of the order you are trying to enforce.
At #2 check the box or boxes which fit your issue.
At #3 you have the chance to describe in more detail how the other
party has violated the prior court order. You must describe the violation clearly. List the reasons in the same order
as they are listed in #2. Be brief, but use a blank piece of paper if you
need more space. (Put the docket number on any extra pages.)
Then answer the questions about your children and whether they have received
public
assistance benefits. If your children have received TANF (formerly AFDC)
or MaineCare (formerly Medicaid), you must send a copy of your motion to DHHS.
Finally, at #5B, explain specifically what you want the Court to order the other
party to do, to set things right. Again, explain this as simply and briefly
as you can. Attach another sheet of paper if you need more room.
Date and sign the Motion. State whether you are the
plaintiff or defendant.
Finally, add your address and phone number. (If you need to keep this
information private, for safety reasons,
click
here for more information.)
Complete the other forms in your packet. Fill in all of the blank spaces.
| Step Three: Serve and File the Forms |
You must give or send copies of the court papers to the other party before
the court will hear your case. The forms packet you got from the
clerk
or online tells you how to do this. Follow the steps carefully. When you make
copies, make two--one for yourself and one for service on the other party.
|
Note: Instead of sending the forms by
regular mail, you can hand deliver them. In
either case, you need to get a signed Acknowledgement of Service form
from the other party. If that person won't sign the form, get a Deputy Sheriff to
serve the papers or try certified
mail. (See instructions in the court forms packet).
|
Then file with the court
clerk
these papers:
- Motion to Enforce (with "proof of service" section filled out, if
served by sheriff)
- Child Support Affidavit (where
mutual
children are involved)
- Summary Sheet
- Signed acknowledgement form, if the other party accepted
service.
- Green card from the post office, if you used certified mail service
If you cannot afford the filing fee, ask the clerk for an
Application to
Proceed Without Payment of Fees and Indigency Affidavit,
if you did not do that earlier.
| Step Four: Response to the Motion |
If you are the person who was served with the motion,
you should file a response within 20 days. The clerk will send you two court forms:
an Entry of Appearance form and a Child
Support Affidavit (where child support is an issue). Fill out the forms and return them to the clerk within 20 days. If you oppose the
motion, you should also file your written response within 20 days.
If you file nothing, the court may assume
that you agree with what the other
party is asking for and
default you. Click
here for more about drafting a response.
Give or mail to the other party copies of all papers
you file with the court, and keep copies for yourself. To find
out what will happen next, read on. The rest of this information
applies to both parties.
| Step Five: Mediation or Court Hearing |
|
Attention Portland Court users! View this video
A Family Law Magistrate explains next steps in the court process. Some, but not all, of the information
in the video reflects Motion to Enforce procedures in other Maine courts, as well.
|
Next, a Judge will move your case in one of two directions:
- Mediation, or
- Formal court hearing
Mediation
If you are sent to mediation and there is a mediation fee, you will be asked to pay the fee before the mediation date.
If you cannot afford the fee, ask for a "fee waiver".
At the mediation, the
mediator will ask you to explain your problems with the other party.
The mediator will also try to help you find agreement where you can. You
must mediate in good faith, but you don't have to agree to anything
that you believe won't work or is unfair. The mediator will meet with each
party privately at the beginning of the session. If you have been abused
by the other party or you are afraid, talk to the
mediator about this in the private meeting. You can ask to be in a separate room during the mediation.
(Read more on this.)
If you still disagree on any issues by the end of the mediation, you will
be sent back to the Judge.
If you do agree on any issues, you will sign a written agreement, which will also
go back to the Judge. If the Judge approves your agreement, she will write
an order. The order will change your
judgment to follow your agreement.
Court Hearing
You will get to this step immediately, if the Judge decides to skip mediation – or after mediation, if you were sent there and you
were not able to agree.
This is a formal court hearing. The Judge or
Magistrate will hear each side. You can testify for yourself, bring witnesses,
and present documents. Court rules of evidence and procedure will be followed.
To prepare for the hearing, plan what you need to say. If you filed the
motion, be ready to explain how the other party has failed to follow the
prior court order. If you are responding to the motion, explain what you
have done to comply. You may want to make a list of the major
facts and points you need to make. If you know people who have first-hand
knowledge of important facts, you can ask them to testify at the hearing.
If a witness is unable or unwilling to come to the hearing, you can
subpoena him. (Read
more about how to subpoena a witness.)
The Judge cannont rely on a letter, or even a sworn statement, from an absent witness if the other parent objects. The only way you can be sure
that a Judge will consider your witness’s statements is by having that person come to the court hearing and testify.
At the hearing, you will be given a turn to tell your side of the
story. You will also have the chance to ask the other side questions. The
Judge may ask you
or others questions. Since you do not have a lawyer, the Judge (or Magistrate) may
help you by explaining court procedures or the law. But remember that he must be neutral and cannot give
you or the other
party legal advice at the hearing.
If your hearing was with a Magistrate and
you disagree with any part of his order, you can file
written objections. Deliver or mail this to the clerk
and send a copy to the other party.
The deadline for filing objections is 21 days from the date the clerk entered the order on
the court docket (usually soon after the Magistrate signed the order). Then a Judge will review
the Magistrate’s order and your objections and give a
final order. If you miss this 21-day deadline,
you waive your right to any further appeal.
The deadline for appealing a Judge's final order to the Maine
Law Court
is 21 days after the clerk enters the order on the docket. File any
appeal with the District Court clerk. You will probably need a lawyer to help
you go forward with an appeal. If no one files an appeal, the order becomes final
in 21 days.
RETURN TO TABLE OF CONTENTS
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Notice
© Pine Tree
Legal Assistance
February 2009
Sometimes the laws
change. We cannot promise that this information is always
up-to-date and correct. If the date above is not this year,
call us to see if there is an update.
We provide this
information as a public service. It is not legal advice.
By sending you this information, we are not acting as your lawyer.
Always consult a lawyer, if you can, before taking legal action.
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