Contempt in Divorce and Family Law Cases
You’ve made it all the way through the litigation process, obtaining an order or judgment stating the responsibilities of each party. Perhaps you finished a divorce or custody case and have a final judgment. Perhaps you’re in the middle of a case and simply have a temporary order. If a party now doesn’t follow the direction of the court, what are you to do? The answer may be to file a complaint for contempt.
Basically, contempt is when someone refuses to follow a court order, even when the person is able to do so. Bringing the contempt issue before the judge is the primary mechanism to resolve the issue. The judge can do a number of different things to make a party do what is in an order. Sometimes that includes putting that party in jail.
Having a lawyer by your side on contempt cases is not always the best strategic move, particularly if you’re behind on your child support. But, having a family law attorney at least advise and coach you through the process is helpful regardless of which side you are on. The first step, however, is understanding how these cases work.
The Law on Contempt
Generally, contempt involves a failure to follow a part of a court order. An action for contempt may be appropriate when the defendant has demonstrably not followed a court order. Just a few examples include:
- refusing to pay the appropriate amount of child support or alimony ordered by the court;
- refusing to leave the marital home when ordered to do so;
- violating a court order of protection from abuse or harassment;
- violating the terms of a child custody order or the provisions of parenting time.
There are two types of contempt: civil and criminal. You can file a contempt action during a divorce (for example, to seek an order to vacate the marital home). Or, you can file after a divorce is final (for example, to seek payment of back alimony). You can also file an action when the other party fails to comply with an order for child support, visitation, or custody. This is true whether or not the order was part of a divorce action.
In civil contempt cases, the plaintiff files a complaint against the defendant. The purpose of a civil action is to make sure the defendant complies for the benefit of the plaintiff. The court may hold an evidentiary hearing. However, that hearing may be waived if neither party requests it. If either party requests a hearing, he or she is entitled to one. In order to prove his or her claims, the plaintiff will have to meet the appropriate standard of proof. In cases of civil contempt, the plaintiff must show, first, that there was a clear and unambiguous court order. Second, the plaintiff must show that the defendant clearly disobeyed a court order.
In criminal cases, criminal charges are brought against the defendant for refusing to comply with a court order. It’s important to note that contempt proceedings, in general, have characteristics of both civil and criminal law. In fact, the court may order jail time in both civil and criminal contempt cases until the defendant complies with the order. As a general rule, it’s wise to speak with a lawyer when losing your case means going to jail.
There are important differences in criminal cases. The purpose of a criminal case is to punish the defendant, not just resolve the situation between the parties. As with all criminal cases, the presumption is that the defendant is innocent until proven guilty. Also, the defendant has the right to an attorney, to due process and proper notice. Under some circumstances, the defendant may also have the right to a trial by jury. The prosecution must prove that the defendant had the ability to comply with the order on which the contempt proceedings are based. And, the prosecution must do so beyond a reasonable doubt.
Whether you’re considering a contempt action or are the defendant in one, schedule a free consult with our office to learn about how the law applies in your case. To schedule a consult, call us at (866) 995-6663.