In the course of your divorce, the family court may issue a range of orders, including visitation and custody determinations, orders to pay attorney’s fees, and divisions of property. When an ex-spouse (or soon to be ex-spouse) is not following the court’s orders, it’s natural to want a means to force him or her to comply and, in certain cases, contempt may be the answer. However, before turning to this solution, there are two important things to note:
- This area of law is highly procedural. We do not recommend filing a contempt action, or responding to one, without legal assistance.
- Family law is not a punitive system. This is a good thing — we want judges to be more focused on individual and familial well-being then on punishment. However, it also means that family law judges often disfavor contempt orders.
Yet, there are times when contempt is appropriate. Here are some basics to know if you are considering filing for contempt or if your ex-spouse has asked the court for a contempt order.
Briefly, to begin a contempt proceeding a party must file an Order to Show Cause, attaching facts in support of the Order. The citee (person being accused of failing to follow a court order) has a chance to respond, including asking the court to discharge or not hear the Order.
If the court does proceed on the Order, there are a number of initial factors it will look to. First, it must determine whether the order is valid. Next, the court will consider whether the citee knew of the order. This is satisfied if that person was in court when the court made the order or was served with a copy of the order. Generally, the court must also find that the citee was able to comply with the order and willfully failed to follow it. For example, if your 15-year-old daughter refuses to go to her father’s house because she swears her soon-to-be step mom is abusive, you aren’t going to be held in contempt for failing to comply with visitation orders if you encouraged her to go but she threatened to run away if you forced her (and/or actually ran away when you dropped her off). Clearly, you aren’t willfully failing to follow court orders; a custodial parent may not be held in contempt for failing to comply with visitation if the child is unwilling to go and the parent cannot compel the child to attend visits.
If a person is found in contempt the court may order payment of fines, payment of attorney fees, performance of community service, or even imprisonment (although rare).
Contempt actions are tricky. If you are considering filing a contempt action or defending against one, we highly recommend you hire an attorney who specializes in family law contempt actions.