- A party is in Contempt when:
- the party was Ordered to do something by a court,
- the party has failed to do that something, and
- the party could have done that something if they had wanted to.
Contempt can apply to any provision of a Court's Order, a Consent Order, a Final Judgment and Decree, or a Settlement Agreement when it is incorporated or merged into a Final Judgment and Decree.
Contempt most often applies to child support and visitation. However, contempt can also apply to exchange of property, procurement of life insurance and payment of debts, to name just a few.
The moving party must prove all three elements of Contempt. Usually the first and second elements are easy to prove, if not something to which the parties can stipulate. The third element, then, is the most litigated element.
Choosing not to do something rather than being incapable of doing something is not that easy to defend. For example: assume child support is way past due to the tune of over $5,000.00. Now assume the party's argument is that he couldn't afford it. However, investigation and discovery show that during the time that the child support arrearage has accrued, the party owing the child support has refinished his basement, gone on vacation to Las Vegas and bought a puppy. In this case, we believe that it wouldn’t end well for the party that owes the child support.
The Court can do many things to remedy Contempt. To begin with, the Court will require repayment of child support. The Court cannot do otherwise. The Court will probably order re-establishment of visitation absent a hugely compelling reason to do otherwise. The Court can order that the obligated party pay attorney fees. Perhaps most importantly, the Court can order that the obligated party be incarcerated until they purge themselves of Contempt. This means, in the case of child support, until they pay off their debt, or some specified portion of that debt.
If your ex hasn't done something they are supposed to do under your Court Order or if your ex has filed a Contempt action against you, call us at (404) 761-1212 or (770) 964-2847 to schedule a free consultation.
A Contempt action is a cornerstone of Family Law. It is the enforcement mechanism to a Settlement Agreement which has been made an Order of the Court, or a Judgment of the Court after a trial.
Whenever you are due something from your Decree and the Opposing Party fails to give it to you, you have an action for Contempt. The most usual contempt action is one for Child Support.
Contempt is a two-step process. First, you must prove that something was not done, such as child support was not paid. Implicit in this is the amount that is owed. Second, and sometimes this is overlooked by the Courts, you must show that the Opposing Party had the ability to do that something, but chose not to. The choosing not to is what makes an Opposing Party's actions contemptible. It is a violation of a Court Order as demonstrated by the Opposing Party's contempt for the Court's Order.
The Court's remedies are varied. Of course, the Court will order that all past due sums be paid. The Court might set up an installment plan if a good argument can be made for one. The Court could incarcerate the party found in Contempt if the Court believes this is the most likely way to enforce compliance with the Court's Orders. The Court will consider attorney fees expended in forcing compliance with the Court's Order.
Would you like to prosecute a Contempt action against a recalcitrant ex-spouse? Do you need to defend an action an ex-spouse brought against you? To schedule a free consultation, call us at (404) 761-1212 or (770) 964-2847, or email us at AttorneySailers@1stcounsel.com