When a court issues an order during or after a divorce, such as an official visitation schedule or regular support payments, it becomes legally binding. This means you must abide by the conditions laid out in the order, and if you willfully disobey, you can be subject to court penalties. This is known as being held in contempt.
While judges in TV dramas throw around the threat of contempt so frequently that it seems standard for any hearing, most violations do not happen in the courtroom.
The legal definition for contempt can include being disrespectful or causing a disturbance in the courtroom (as seen on TV), but in the real world, most people are on their best behavior when standing in front of a judge.
Contempt in most divorce cases usually involves intentionally disobeying court orders — both temporary and those found in the final decree.
What constitutes contempt
Violations of court orders can occur at any time throughout the divorce process. Common infractions that result in contempt include non-payment of ordered child support or alimony, not following a court-approved visitation agreement and disregarding a court-ordered asset distribution.
However, it is important to note the key phrases intentionally or willfully. To be found in contempt, it must be proven that the accused party:
- Knew the order existed,
- Had the ability to comply with the order but violated the conditions knowingly, and
- Lacks just cause or excuse for the violation.
The burden of proof lies on the accuser, so be sure you have solid evidence to back up your claims before filing for contempt.
This means that if your ex-wife will not allow you to see your children during your prescribed visitation time, but had a valid excuse, you would likely fail to convince the court that contempt had occurred. However, if she simply didn’t allow your children to visit without a good reason, it could be considered contempt if you were able to prove she had the capacity to follow through, but she simply did not.
You must be prepared for your spouse to come up with excuses why she was unable to comply and have sufficient evidence to refute those claims.
Additionally, it helps to send a warning letter to the offending party before actually filing for contempt as a show of good faith. Include a clause defining how they can rectify the situation before it moves to court, and be specific: “Pay the ordered support within X days, and I will not seek court enforcement.”
If they still willfully disregard the order, you can show the court that you made an effort to resolve the situation and the other party still will not comply.
Consequences of contempt
Committing contempt can include both civil and criminal penalties. These can include fines, paying the other party’s attorney fees, compensatory custody time or even a jail sentence.
If the court determines that contempt was committed, it will usually give the offending party an opportunity to make up for the infraction.
If the offense was withholding child support or maintenance and they are able to pay the back support (or even a significant portion of it), the court likely will not pursue further punishment since the point of a contempt action is to seek compliance with the order.
However, if something like withholding visitation is a continuing problem, the court has the power to award extra time with the children or even modify the custody arrangement. This usually requires the contempt charge to be filed alongside a motion to modify.
While the option exists for a court to issue jail time, it is generally pretty rare. Typically, the threat of jail and fine are enough to knock offenders into shape.
Courts will usually issue ultimatums or alternatives to jail, such as paying a little extra until you catch up on support payments. Actually going to jail isn’t very useful to anyone, but it remains a possible punishment for serious or habitual violators.
Some states can also issue damages as well as contempt sanctions. Damages are the economic losses that result when the other party failed to act, despite having the ability to act.
For example, if the wife was to pay a credit card debt so the husband could secure a loan for his business, and she failed to do so despite being able to pay the debt, the loss of business to the husband would constitute damages that he could request she pay. However, he still has the burden of proving “with reasonable certainty” the amount of the loss.
Process of filing for contempt
Filing a motion of contempt is your best option to ensure the decree is enforced and your rights are protected if your spouse is willfully breaking an order and showing no signs of compliance. Here is a basic rundown of what you should do if you believe your ex, or soon-to-be ex, has violated a court order:
Read carefully — make sure you fully understand the language of the decree or order to be sure that a violation truly occurred. Remember, you will also need to prove that your spouse had the ability to uphold the order and willfully disregarded it. You must have extremely solid evidence to prove this in court.
Contact an attorney — it is possible to represent yourself in a contempt action; however, it would be much more beneficial to speak with an experienced family law attorney first. Domestic litigation is complicated, but even a consultation can help determine your chances of success. Not to mention that if you are successful, the offending party often must pay your attorney fees for having to drag this into court.
Offer a resolution — the intent is always to get the offending party to comply with the court order. It is often enough to let your ex know that you are ready to go to court if they cannot figure out a way to make things right.
File a motion — If they still will not comply, you will file a contempt motion in the same court that issued the order, and the court will issue a hearing date. Your attorney will normally take care of this part for you, but if you are representing yourself, you will need to research your local court’s procedures. Contacting the court clerk can be a useful resource if you need it.
Official service — the offender is entitled to official notification of the pending charges. After the court schedules a hearing, the paperwork must be served to every involved party.
Attend the hearing — The judge will hear the evidence presented by the side alleging contempt, as well as the defending party’s reasons for non-compliance. The judge will then determine whether or not contempt occurred. If the judge finds sufficient proof for contempt, an order will be written specifying how the issue is to be resolved.
It deserves reiteration to mention that the idea behind contempt is not to punish the violating party, but to pressure them into complying with a court order. It should not be used as a go-to method for resolving minor disputes, but as an effective method to enforce your rights when your ex shows little sign of following the court’s mandate.
If you believe your spouse is willfully violating a court order, don’t wait too long and speak with an attorney as soon as possible. If you wait too long to file an action, it is possible the court can claim you acquiesced to their conduct and may dismiss your charge.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”