When one party is not following the orders of family court, they are said to be in violation of court orders and being deliberately and willfully disobedient. Even though the case may seem fairly straight forward, there are some particular aspects that need to be addressed if you are to prove your spouse or former spouse is in contempt.
Because there are stiff penalties for being held in contempt, such as jail time, the burden of proof for willful contempt is significant. The court has to be careful not to violate a person’s constitutional rights since they can be jailed, fined or have future support deducted out of their pay as a result of being found in contempt. Here are some questions to ask yourself before filing your motion for contempt:
- Is the order specific? Does it have one meaning that is clearly stated? Is there an agreed upon date for a support payment or an agreed upon specific custody schedule? Is there room for interpretation or any cause for confusion? Can there be more than one meaning to the order?
- Does the spouse or former spouse know about the order? Did they sign the agreement? Were they personally served the paperwork?
- Do they have the ability to comply? Are they knowingly avoiding the responsibility even though they have the means to do so? If your spouse is claiming they cannot afford to pay a certain amount of child support, yet you can prove they are earning enough to do so, can you show that they are knowingly and willfully avoiding the court order? Be prepared with evidence of their ability to comply, such as income statements, bank statements, etc.
- What circumstances could excuse them from their compliance of the Court’s order? Jail time will usually be avoided in contempt of court cases when a spouse being detained results in him or her losing their job, dependent children would be left without a caretaker, the spouse has a disability or they have a proven inability to comply with the court order. Evidence is crucial to proving your case, so be prepared to provide plenty of it.
- The Court can also order that the party who is not in compliance pay attorney fees and costs.
The results of this filing can be very effective for enforcing an order. The judge can rule that your spouse or former spouse has to immediately comply or will give them a set amount of time to comply. Either way, it helps you to enforce an order that your spouse or former spouse could otherwise walk away from.
Please remember, this article is merely meant for guidance and information purposes. It is NOT intended as legal advice nor does it establish attorney/client relationship or privilege.