If you have gone through a divorce, custody dispute, or any one of several different family or civil law actions, you may be party to a court order requiring another person to:
- Provide you with child or spousal support payments.
- Provide health insurance and/or medical expenses for you or your children.
- Allow you to visit or take your children according to a specific schedule.
- Pay a civil penalty to you as ordered by the court.
- Surrender certain other assets to you as ordered by the court.
If this other person fails to deliver on the terms of the court order, they may be in contempt of court. If you have been a victim of another person’s willful disregard of a legal order, you may be able to file a “motion for contempt,” which will require the other party to either settle their obligation to you or be fined, have their wages garnished, or be incarcerated until they agree to comply.
In this month’s article, we will examine what filing a contempt of court petition or motion of contempt involves and how it works.
Step One: Determine if Contempt of Court Has Occurred
Just because someone misses a child support payment or fails to bring your children to a scheduled visitation does not automatically mean they are guilty of contempt. For contempt of court to take place, the offender must have the means to carry out their court-ordered obligation but must willfully neglect to meet the obligation.
If a former spouse loses their job and legitimately no longer has the ability to pay their court-ordered child support or simply forgot to drop the check in the mail, they would not be considered to be in contempt of court (although, in the first case, they should have petitioned the court to have the order amended to reflect their loss of income). Similarly, if a co-parent fails to bring children to a scheduled visitation because they were stuck at an airport on the other side of the country due to forces beyond their control, that is also not considered contempt of court.
That being said, lying to the court about circumstances or attempting to hide assets from the court to avoid a contempt charge is a serious offense and may lead to more severe criminal contempt charges.
If the person violating the court order did so on purpose and otherwise has the money, property, or other assets required to meet the obligation, they could be held in contempt.
Step Two: File the Motion for Contempt
While initiating a motion for contempt yourself is possible, it is always a good idea to bring your legal counsel on board to help you with the process. The process of initiating the claim is relatively simple, but if the offender chooses to fight the contempt charge instead of simply settling the obligation, things can get complicated quickly. Having counsel represent you through the process is the best way to maximize the chance of a successful outcome.
A Motion For Contempt is always filed with the court that issued the court order. You or your attorney will be able to fill out a form to start the process, and the offender can be served with notice one of two ways:
- You or your counsel can serve the offender yourself or hire a third-party process server to deliver the notice.
- The court can dispatch a Sheriff’s deputy to serve notice at the offender’s home or workplace.
The notice will contain a summons to a hearing where both parties can present evidence to support their arguments.
Step Three: The Defendant Responds
Once they have been served with notice, the defendant in the contempt case has three possible courses of action:
- They can purge the contempt charge by settling the obligation outlined in the court order, including any outstanding debts. If they choose this route, the contempt charge is dropped, and the matter is dismissed.
- They can “answer” the motion and appear at the hearing. In this case, they and their legal counsel can make one of several possible defenses to the contempt charge, and the judge will decide whether the contempt of court charges will stand.
- They can ignore the service and refuse to appear at the hearing.
If the defendant chooses to answer the claim and does so successfully by proving that they either did not have the means to meet the obligation or did not violate the order willfully, the charge will be dropped, and the case dismissed.
If the defendant chooses to answer the claim and is unsuccessful, they will be ordered again to meet the obligation. They may suffer wage garnishment or incarceration until the debt is discharged.
If the defendant chooses the third option and refuses to appear, they will be held in contempt of court, and a bench warrant will likely be issued for their arrest.
Unless the defendant agrees to settle the obligation before the stated court hearing and purges the contempt claim, there will be a hearing. Having counsel represent you during the process will be a significant advantage to getting what is rightfully yours.
Contempt of Court Is a Powerful Tool for the Courts – and for Victims. Call EMC Family Law Today!
Our attorneys have years of experience petitioning the courts for contempt charges against non-compliant co-parents, spouses, and violators of protective orders. Tell us about your situation today: 770-225-7000