Key Takeaways
- Contempt Requires More Than a Violation of an Order. Not every failure to follow a court order results in contempt. In most cases, the court must find that the party knew about the order, had the ability to comply, and willfully chose not to do so.
- Enforcement and Contempt Are Not the Same Thing. The court’s primary goal is often to obtain compliance rather than punish misconduct. In many cases, judges focus on practical solutions that correct the problem and move the case forward.
- Support Cases Frequently Lead to Contempt Actions. Unpaid child support, unpaid alimony, unreimbursed medical expenses, and other financial obligations are among the most common reasons parties return to court seeking enforcement.
- Parenting Plan Violations Can Trigger Court Intervention. Repeated denial of parenting time, failure to follow decision-making provisions, or refusal to comply with parenting schedules may result in enforcement proceedings and, in some cases, contempt findings.
- Property Division Orders Must Be Followed. Divorce decrees often require the transfer of assets, refinancing of the marital home, execution of deeds, or division of retirement accounts. Failure to complete those obligations can lead to significant court involvement.
- Attorney’s Fees May Be Awarded to the Successful Party. Under RSA 458:51 and RSA 461-A:15, New Hampshire courts frequently award reasonable attorney’s fees and costs when a party has failed without just cause to comply with a court order.
- Objective Evidence Usually Wins These Cases. Bank records, payment histories, emails, text messages, parenting calendars, school records, and other documentation are often far more persuasive than competing verbal explanations.
- Inability to Comply Can Be a Defense. A court should not hold a person in contempt for failing to do something genuinely impossible. However, the burden is usually on that party to prove the inability with credible evidence.
- Courts Have Powerful Enforcement Tools Available. Depending on the circumstances, a judge may enter money judgments, issue wage assignments, order payment plans, award attorney’s fees, impose coercive sanctions, or take other steps designed to compel compliance.
- A Pattern of Noncompliance Can Have Long-Term Consequences. Repeated violations of court orders often affect credibility and may influence future decisions involving custody, parenting time, support, and other family law issues.
Introduction: Court Orders Only Matter If They Can Be Enforced
One of the most frustrating experiences in a New Hampshire divorce or family law case is obtaining a court order only to have the other party ignore it. The judge enters an order requiring child support payment, parenting time, property transfer, or refinancing, yet weeks or months later nothing happens. The order exists on paper, but the practical problem remains unresolved.
For many people, that situation feels deeply unfair. They followed the rules, participated in the court process, and obtained a legally binding order. When the other party refuses to comply, it can feel as though the system has no real way to protect them.
Fortunately, New Hampshire courts possess significant authority to enforce their orders. That authority comes from both statutes and the court’s inherent powers. At the same time, contempt is not automatic. Judges recognize that life is complicated, misunderstandings occur, financial circumstances change, and not every violation of a court order is intentional.
Understanding the difference between a genuine contempt case and a situation that may require another form of enforcement is often the first step toward resolving the problem effectively. In many cases, the goal is not punishment. The goal is getting the parties back into compliance and restoring stability for the family.
What Is Contempt in New Hampshire Family Court?
Many people use the word “contempt” to mean any violation of a court order. Legally, however, the concept is more specific.
Under New Hampshire law, civil contempt generally involves a party’s willful and knowing failure to comply with a clear and enforceable court order without just cause. The New Hampshire Supreme Court has repeatedly explained that contempt is fundamentally about disobedience of a valid court order. State v. Nott, 149 N.H. 280 (2003); In re Brownell, 163 N.H. 593 (2012).
The courts have identified three basic elements that must generally be proven:
- A valid court order exists.
- The party knew about the order.
- The party intentionally failed to comply with the order.
The concept of “willfulness” is often where the real dispute occurs. New Hampshire courts have defined willful conduct as behavior that is deliberate and intentional rather than accidental. Kessler v. Gleich, 156 N.H. 488 (2007).
This distinction matters because not every violation is contempt. A parent who loses a job and genuinely lacks the ability to pay support may have a very different case than a parent who simply chooses not to pay despite having the resources available.
New Hampshire Law on Contempt and Enforcement
New Hampshire courts possess both statutory and inherent authority to enforce their orders. The New Hampshire Supreme Court has recognized that the power to enforce court orders is an essential component of the judicial system itself. Opinion of the Justices, 138 N.H. 425 (1994); State v. Moquin, 105 N.H. 9 (1963).
In family law matters, enforcement authority appears throughout New Hampshire’s domestic relations statutes. The Family Division also maintains continuing jurisdiction over divorce, parenting, child support, and related matters under Family Division Rule 2.1.
One of the most important concepts for litigants to understand is that contempt is a discretionary remedy. Even where a violation has occurred, a judge is not necessarily required to enter a contempt finding. The court may instead focus on enforcing compliance through another mechanism if that better serves the circumstances of the case. In re Kosek & Kosek, 151 N.H. 722 (2005).
This is one reason experienced family law attorneys often distinguish between filing a motion for contempt and filing a motion to enforce. Sometimes the primary objective is obtaining compliance rather than obtaining a formal contempt finding.
Another significant aspect of New Hampshire law is the availability of attorney’s fees. Under RSA 458:51 and RSA 461-A:15, if the court finds that a party failed without just cause to obey a prior order, the prevailing party is generally entitled to reasonable attorney’s fees and costs. This fee-shifting provision can become a powerful incentive for compliance.
Common Types of Family Law Contempt Cases
The most common contempt cases involve money.
A parent may stop paying child support. An ex-spouse may fail to pay alimony. A party may refuse to transfer retirement funds or other assets required by a divorce decree. Sometimes the amount at issue is relatively small. Other times the arrearage can reach tens or even hundreds of thousands of dollars.
Parenting disputes are another frequent source of contempt litigation. One parent may repeatedly deny parenting time. A parent may refuse to provide information required by the parenting plan. Sometimes one parent makes unilateral decisions regarding education, medical care, or extracurricular activities despite orders requiring joint decision making.
Property division disputes also generate contempt filings. A divorce decree may require a home refinance, the transfer of a vehicle title, execution of a quitclaim deed, or division of retirement accounts. When one party refuses to complete the required steps, contempt proceedings often follow.
The courts also see cases involving violations of temporary orders. In some situations, the conduct occurring during the pendency of the case becomes highly relevant at the final hearing. A repeated pattern of noncompliance can affect both credibility and future court orders.
How a Contempt Case Is Filed and Proven
Before filing for contempt, attorneys often evaluate whether alternative dispute resolution is required. Many parenting plans contain provisions requiring mediation or another dispute-resolution process before court intervention. The New Hampshire Supreme Court has enforced those provisions. In re Conner & Conner, 156 N.H. 250 (2007).
Assuming court intervention is appropriate, the moving party must identify the specific order allegedly violated and explain how the violation occurred. Precision matters. The stronger cases involve clear orders and clear evidence of noncompliance.
Evidence often includes financial records, canceled checks, parenting calendars, text messages, emails, school records, and witness testimony. The more objective the evidence, the easier it becomes to prove the violation occurred.
One issue that surprises many litigants is that the burden may shift. Once the moving party establishes the existence of the order, knowledge of the order, and noncompliance, the responding party often must explain why compliance was not possible. Inability to comply can be a defense, but it generally must be proven with credible evidence. State v. Wallace, 136 N.H. 267 (1992).
Because contempt hearings often occur relatively quickly after filing, preparation is important. Documentary evidence, financial affidavits when required, payment histories, and witness preparation can significantly affect the outcome.
Common Defenses to Contempt
One of the most common defenses is inability to comply.
A parent who loses employment, experiences a serious illness, or suffers another significant financial hardship may be unable to satisfy an existing support obligation. New Hampshire courts generally recognize that a person should not be held in contempt for failing to do something that is genuinely impossible. McGrady v. Mahon, 117 N.H. 762 (1977).
Another common defense is that the order itself was unclear. Contempt requires violation of a sufficiently specific and enforceable order. If reasonable people could interpret the order differently, a contempt finding may become more difficult. In re Giacomini & Giacomini, 150 N.H. 498 (2004).
Payment is also a defense, although it sounds obvious. There are situations where records are incomplete, payments were made informally, or accounting disputes exist. The court must ultimately determine what actually occurred.
Sometimes the defense is not legal but practical. The responding party may immediately cure the violation after receiving notice of the contempt action. While that does not necessarily eliminate the issue, it may affect the court’s analysis regarding sanctions and attorney’s fees.
A Fictional New Hampshire Example
Imagine a fictional New Hampshire divorce involving Brian and Melissa.
The final divorce decree requires Brian to refinance the marital home within twelve months and remove Melissa’s name from the mortgage. The decree also requires him to pay child support and reimburse Melissa for certain extracurricular expenses.
Twelve months pass. Brian has not refinanced the home. Melissa remains legally responsible on the mortgage. Several extracurricular reimbursements also remain unpaid.
At first glance, this may appear to be a straightforward contempt case. However, further investigation reveals that interest rates increased substantially after the divorce and Brian has been denied refinancing despite multiple applications. He can document the applications and lender denials.
At the same time, the evidence shows Brian continued taking expensive vacations and purchasing discretionary items while ignoring the reimbursement obligations. The court may conclude that the refinancing issue was not willful because compliance was genuinely impossible under the circumstances, but the reimbursement violations were entirely within Brian’s control.
In that situation, a New Hampshire judge might decline to find contempt regarding the refinancing requirement while entering a contempt finding regarding the unpaid reimbursements. The court could enter a money judgment, order payment by a specific date, award attorney’s fees to Melissa, and establish additional enforcement mechanisms going forward.
This example illustrates why contempt cases are rarely as simple as they initially appear. The analysis often turns on credibility, documentation, and the practical realities surrounding compliance.
Frequently Asked Questions
What is the difference between contempt and enforcement?
Enforcement focuses on getting a party to comply with a court order. Contempt involves a finding that the party willfully violated that order.
Can I file contempt every time the other parent violates the parenting plan?
Not necessarily. Some parenting plans require mediation or other dispute resolution first, and courts generally expect parties to make reasonable efforts to resolve issues before seeking contempt.
Can someone go to jail for contempt in New Hampshire?
Yes. In certain circumstances, courts may use incarceration as a coercive remedy in civil contempt proceedings, although it is generally considered a remedy of last resort.
Do I need a lawyer to bring a contempt action?
No, but contempt proceedings can involve significant procedural and evidentiary issues. Representation is often beneficial, particularly in contested matters.
What if I genuinely cannot comply with the order?
Inability to comply may be a defense, but you will generally need evidence supporting your position.
Can I recover attorney’s fees?
Often yes. Under RSA 458:51 and RSA 461-A:15, prevailing parties may recover reasonable attorney’s fees and costs.
What evidence is most helpful in a contempt case?
Payment records, bank statements, emails, text messages, parenting calendars, school records, and other objective documentation are often extremely persuasive.
How quickly are contempt hearings scheduled?
Many contempt hearings occur relatively quickly, often within a matter of weeks, although scheduling varies by court and circumstances.
Can the court modify an order instead of finding contempt?
Yes. Because contempt is discretionary, courts sometimes choose enforcement or modification remedies rather than formal contempt findings.
Can a contempt finding affect future custody litigation?
Absolutely. A pattern of violating court orders can impact credibility and may influence future decisions involving parental rights and responsibilities.
Final Thoughts
Contempt and enforcement proceedings occupy an important place in New Hampshire family law. Court orders carry meaning only when courts can enforce them, and New Hampshire courts possess substantial authority to ensure compliance when parties refuse to follow those orders. At the same time, contempt does not arise automatically and does not aim to punish every mistake or disagreement.
The central question is usually whether a party willfully violated a clear and enforceable order without just cause. That inquiry often requires careful analysis of the facts, the surrounding circumstances, and the evidence available to the court. Sometimes the answer is straightforward. More often, there is substantial nuance involved.
For that reason, the strongest contempt cases are usually built on detailed documentation, thoughtful preparation, and a realistic understanding of what the court is trying to accomplish. In most situations, the ultimate objective is not punishment. It is restoring compliance, protecting the interests of the family, and ensuring that court orders mean what they say.
About the Author: Damian Turco is the Founder and Managing Partner of Turco Legal and has practiced divorce and family law since 2008.Damian Turco’s Bio Page | More Blogs from Damian Turco
This article is for informational purposes only and should not be interpreted as legal advice. Articles on our blog are written at a historical point in time and the information presented accurately reflects the law at the time of the article’s writing. If you’d like to better understand how the law applies to your case, schedule an attorney consultation by calling any of our offices or by clicking the Schedule a Consultation link on this page.