Attorney, Cordell & Cordell
If you fail to comply with an order of the court to pay child support, it’s likely the custodial parent of your child(ren) will seek an order of contempt.
A contempt action’s real purpose is to ensure compliance with the order of the court. The practical effect, however, could be big trouble for an individual who fails to comply.
Most often, parties seeking a contempt order threaten jail time for the non-paying party. The reality is that jail time could be a remedial measure used by the court, but it is more often a last resort for the judge.
A contempt action is civil in nature and the purpose of the contempt is remedial rather than punitive. This means that the purpose of an order of contempt is not intended to “get you in trouble.”
Typically, a motion for contempt is an independent action (usually ancillary to a divorce action or an order to pay support), and the same civil procedure requirements exist. This means that for a contempt action, the moving party must serve the offending party personally with a Summons and a copy of the Motion for Contempt.
If you are served with a summons and complaint, as in any other civil action, you generally must respond within thirty (30) days of the date of service by filing an answer with the clerk of court. (Note: check with your local jurisdiction’s requirements as they may vary.)
Though the contempt action is ancillary to the divorce action, discovery may occur because it is an independent suit. This means that much like in the divorce action, the Plaintiff has the right to request production of documents and seek the answers to interrogatories. In many cases, the purpose is to determine whether there is a source of funds for the payment of the past due support.
You will not be held in contempt if the court finds an inability to pay, but this does not absolve the debt or the arrears. In order for the court to find an inability to pay, it must be shown by clear evidence that the offending party has exhausted all resources and assets after paying his own obligations and that he is unable to borrow the money from a third party.
Many parties believe that their child support (or alimony) obligations belong to them and only them. This is true to the extent that no other third party can be held in contempt for failure to pay or ordered to make the payments on another’s behalf.
However, when it comes to determining inability to pay, the judge may look to the party’s parents and other family members as a source from which to borrow. The judge may evaluate balances in a bank account, 401k account, or some other liquid asset to determine where the funds may be drawn from.
In most cases, when there is a failure to pay support and the party who has failed to pay the support shows their financial hardship and a legitimate reason for the failure to pay, the court will provide for a repayment of the arrears.
This can be anything from “pay by the end of the day” to a lengthy payback plan. Judges do not throw people in jail unless it becomes apparent that they have no other option for the enforcement of their own orders.
It should be noted that a judge does not have the discretion to modify its order within a contempt action. If you find yourself in a contempt action due to an inability to pay, you must file a separate modification case if you want the support amount evaluated for modification.
Cordell & Cordell has men’s divorce lawyers located nationwide should you seek legal representation.
Read our series of articles on contempt:
- What Is Contempt?
- What Conditions Must Be Met For Contempt?
- What Are The Consequences of Being Found In Contempt?
Also, read our series of articles on modifications:
- Reasons For Modification
- How To Act Before Your Modification
- Evidence Needed For Modification
- How Moving Affects Modification
Andrea M. Johnson is a Senior Attorney in the Atlanta, Georgia office of Cordell & Cordell, where she practices domestic relations exclusively. Ms. Johnson is licensed to practice law in the state of Georgia. Ms. Johnson was born in the metro-Atlanta area and has spent most of her life in Georgia. She received her Bachelor of Science in Political Science from Columbus State University in Columbus, Georgia in 1998. Ms. Johnson received her Juris Doctor from Mercer University School of Law in 2002. Since graduating from law school, Ms. Johnson has practiced in the area of family law. Additionally, she has worked in general civil practice, immigration, and estate planning. Ms. Johnson has briefed two cases successfully before the Georgia Court of Appeals, one of which was a modification of custody action.