Court-issued orders during or after divorce, such as a child support order or visitation schedule, are legally binding. Failing to abide by the conditions listed in the order can lead to you being held in contempt and will subject you to court penalties.
What is contempt?
It’s possible to violate a court order at any time during the divorce process. Common violations that can result in contempt include failing to pay child support or alimony, not following a visitation agreement or ignoring a court-ordered asset distribution.
However, in order to prove someone is in contempt the accuser must show that their opponent has intentionally or willfully violated the order. Intent is key. In order to find someone in contempt, the accuser must show that the accused party:
- Knew about the order,
- Had the ability to comply with the order but knowingly violated the conditions, and
- Lacks any valid excuse for the violation.
Since the burden of proof lies with the accuser, it’s important to make sure you have sufficient evidence to support your claim before filing for contempt.
For example, if your ex fails to allow you to see your kids during your prescribed parenting time, but the reason she did so was because she had a flat tire then you almost certainly wouldn’t convince the court that she was in contempt. However, if she repeatedly comes up with excuses for not allowing you to see the children and you can show that those excuses are disingenuous, then you will have a strong case.
It’s also a good idea to send the offending party a warning letter before actually filing for contempt. The court will see this as an act of good faith and proof that you are not simply trying to stir up trouble with your ex. Include in the letter a clause specifically defining how they can fix the situation before going to court. For example, if they owe you child support you could give them a certain number of days to pay the support before you seek court enforcement.
If they continue to disregard the order, you can show the court you made a good-hearted effort to resolve the issue without going to court but the opposing party simply won’t comply.
Consequences of contempt
Contempt can include both civil and criminal penalties that range in severity depending on the infraction. These include fines, compensatory visitation, a change in custody arrangements, and even jail time.
Typically, if the court determines someone is in contempt, they’ll give them a chance to make up for the violation. That might involve paying back support that is owed or giving the opposing party additional parenting time for failing to meet a visitation schedule. If they’re able to meet those make-up requirements, the court likely will not punish them any further since the entire point of a contempt action is to seek compliance.
If an issue like withholding visitation is an ongoing problem, the court can award extra time with the kids and even modify the custody arrangement, which requires the contempt charge to be filed with a motion to modify.
It’s generally rare for a court to issue jail time over contempt, although the option does exist. Usually, the threat of jail time is enough to persuade the offender to comply.
Some states will also issue damages on top of contempt sanctions to cover the losses that result when the other party failed to act. For example, if your wife was supposed to pay off a credit card so you could secure a loan for the business you own but she fails to do so, the loss of business would constitute damages that you could request she pay for.
Filing for contempt
Filing for contempt is similar to filing for divorce. A new case is open and a petition is filed. Your ex-wife will need to be properly served.
Then at court, you must show evidence that contempt took place and prove that the violation was willful.
Before you file, however, here are some steps you should run through to make sure filing for contempt is worth the time and effort.
Read your decree – Read and re-read the language in your divorce decree so you are absolutely sure that a violation has occurred. Keep in mind you must prove your ex had the ability to uphold the order and intentionally ignored it. This requires solid evidence that will hold up in court.
Contact an attorney – Although you can represent yourself in a contempt action, it is a better idea to speak with an experienced family law attorney. Even if you don’t hire an attorney, you can gain a lot of valuable information from a consultation that can help you determine your odds of success. If your case is successful, the offending party is often required to pay your attorney fees.
Propose a resolution – Your goal in filing for contempt is to get the offending party to comply with the court order. It’s often enough to just show your ex that you are willing to go to court.
File a motion – If you’ve exhausted all other efforts and your ex still won’t comply, you then need to file a motion of contempt in the same court that issued the order. The court will issue a hearing date. Your attorney will handle this part, but you’ll need to research your local court’s procedures if you’re representing yourself.
Serving your ex – The offending party needs to be officially notified of the coming charges. Once the hearing is scheduled, paperwork needs to be served to every involved party.
The hearing – At the hearing, the judge will hear evidence from the alleging side in addition to the defending party’s reasoning for failing to comply. After hearing both sides, the judge will decide whether or not contempt occurred. If there is enough proof, an order will be given specifying how to resolve the issue.
If you believe your spouse is intentionally refusing to follow a court order, speak with a family law attorney as soon as possible.