Contempt Proceedings in Child Custody and Support Cases
A final order in a divorce proceeding is intended to bind both spouses, unless the court later modifies the order. A spouse who needs the court to change a provision related to spousal support or child support, for example, must ask the court directly to make that change. All of the relevant legal procedures must be followed before the change takes effect. Unless and until the spouse does that, he or she must comply with the existing order.
Unfortunately, this simple fact is not always recognized. A spouse who is not satisfied with the result of a divorce proceeding may deliberately disobey a provision of the final order with which he or she disagrees. For example, the spouse may view violating the order as a way to punish his or her ex-spouse. Ways in which a divorce order can be violated include failing to pay spousal support, failing to pay child support, or hindering the right of the other spouse to see the couple’s children according to the visitation plan arranged by the court.
If you are in this situation, you may want to file a motion to hold your ex-spouse in contempt of court. A lawyer can help make sure that the proper procedural requirements are followed. Your ex-spouse must have notice of the hearing on the contempt motion, and most courts have set up a specific process for filing these motions. If this process is not followed properly, or your ex-spouse is not notified of the hearing, your contempt motion likely will not succeed.
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The Motion for Contempt
The motion must specify what part of the divorce order your ex-spouse violated, and what he or she did to violate it. The burden of proof at the hearing rests on the person who filed the motion. You may need witnesses and documents to support your motion; note, however, that courts tend to frown upon using your children as witnesses.
Along with documenting the dates and times when the other parent failed to comply with the order, you should document how you attempted to remedy the situation – including texts, emails, and phone calls.
Your ex-spouse also will appear at the hearing, probably with his or her lawyer, to argue that the order was not violated. A judge will hear evidence presented by each side before making a decision. If the judge rules in your favor, the court will file an order against your ex-spouse. This document will state not only that he or she violated the divorce order but what he or she needs to do to comply with it or make up for the violation. After the hearing, your ex-spouse will be given the chance to comply with the order to avoid being held in contempt.
Enforcing a Contempt Order
If your ex-spouse fails to comply with the order during the specified time window, he or she may face penalties. These can extend to jail time until the non-compliance ends, but a judge does not always order jail time in these situations. You should remember that the purpose of a contempt order is not to punish your ex-spouse for what he or she failed to do, but to give your ex-spouse an incentive to comply with the divorce order moving forward. In some circumstances, ordering jail time or financial penalties may be counterproductive. An ex-spouse who fails to pay the required amount of spousal support or child support may simply be unable to find the funds because he or she is unemployed or under-employed. Putting that person in jail or levying fines would make it even more difficult for him or her to comply with the divorce order.