What if my ex-wife won’t follow our custody agreement or divorce order
What if my ex-wife won’t follow our custody agreement or divorce order?
One of the most common issues our divorce lawyers in Tallahassee assist people with is enforcing family law judgments and custody agreements. Enforcement can be accomplished through seeking a contempt order in some situations. Other situations cannot be enforced using the Court’s contempt powers. Contempt refers to any case in which an individual violates a court order, which is punishable by fines, jail time, or other penalties. The consequences depend on the cause, type, and length of the contempt. Contempt can range from failure to pay child support to being disruptive during the court proceedings. If the other party in your case (whether divorce, child support, or custody) is failing to abide by the court’s ruling it’s important that you bring the court’s attention to it. Not only will it protect you (and your child, if that is the case) but it’s a strong precedent to have in case future legal action is necessary.
Filing a motion for civil contempt
Motions for contempt typically regard custody, alimony, or child support payments. In Florida, you would file a motion for contempt/enforcement in which you state what the other party has failed to do. Are you being denied court-ordered visitation rights? Are you not receiving the ordered alimony? These and other situations are all cause to file a motion for contempt. Each week in Tallahassee, Florida, family law attorneys and unrepresented parties go before judges, magistrates and hearing officers on child support issues. In Tallahassee, Child Support Hearing Officer Michael Ruff handles contempt cases dealing exclusively child support. Also in Tallahassee, Magistrates Amanda Wall and Acelo Pedroso handle contempt issues related to child custody and child support. Lastly, there are several circuit judges in Tallahassee, FL in front of whom our Tallahassee divorce lawyers argue contempt issues regarding support, custody as well as alimony and attorney’s fees. In addition to filing the contempt motion, it must be served on the other party. Although contempt motions do not generally require service of process, it is a good idea to consult with a Tallahassee family law attorney on whether it is a good idea for your case.
What does the court take into account before declaring someone to be in contempt?
One of the first issues a court will determine is whether the order was clear to understand. For example: Was the defendant aware that he had to pay child support? Did he know it had to be paid the first week of the month, and how much it was?
Say a Florida court mandated Josh to pay child support, but he has failed to do so for the past 4 months. Anna needs the child support to make ends meet and provide for their child, so her lawyer advises her to file a motion for contempt and enforcement. It is obvious Josh understood the order, because he had been paying the correct amount in time before the payments stopped. The first hurdle has been cleared.
Next, the court will examine whether the defendant was able to comply with the order. What if Josh was laid off and has been unable to find a job? Or perhaps he just found a job, but has not received his salary yet. If he has no income, he can’t derive the payments from them. Josh is clearly unable to comply with the court order of child support, so he cannot be held in contempt.
If, on the other hand, Josh’s financial situation has remained the same and he has decided not to pay, he will be held in contempt and is liable for the backed up payments. If the latter was the case and Anna has any voicemail, text message, email, etc. from Josh in which he states he will never give her money again, or any similar message which demonstrates he is intentionally withholding the payments the court will take those into account as evidence.
There are many different interpretations for a similar set of facts. Talking with a family law attorney in Tallahassee can give you an idea of whether you think you can succeed (without a lawyer or represented by counsel) on your contempt/enforcement motion.
What will the court do if it does find the other party in contempt?
If the court finds that the other party willingly refused to follow the court’s judgement, despite retaining the ability to do so, they will be held in contempt. But what does that mean for you?
The court might hold them in jail until they “purge”, meaning pay you the backlogged payments. They might also have to pay your attorney fees.
If the contempt relates to child support the court has other means to enforce payments. They could enforce income deductions, invalidate their driver license, or garnish their accounts (freezing their assets). In some cases, failure to pay child support can be considered criminal contempt, so it is important you discuss that with your lawyer. The court can also demand any other penalty the law allows, and your lawyer can advise what other consequences are applicable given your circumstances. Different judges, magistrates, and hearing officers have different tendencies depending on the facts at hand. For Tallahassee family lawyers, the same is true.
Does every enforcement action involve contempt?
In short, no. Actions to enforce one-time minor parenting issues will rarely lead the Court to hold a party in contempt. Withholding mandated support or timesharing from the other parent, on the other hand, will almost always lead to a finding of contempt. Although the Court can and will use its contempt powers to enforce alimony obligations, enforcing equitable distribution is like enforcing any other money judgment and cannot be enforced using the Court’s contempt powers. As divorce lawyers in Florida can tell you, there is often room for argument on whether something should be enforceable by contempt or not. To discuss these issues with one of our family law attorneys in Tallahassee or the surrounding areas, contact us today to schedule a consultation.
Contempt and Enforcement motions are difficult to navigate, given the specificity required in each procedure. Here at Liebenhaut | Hesser, we receive many calls of individuals struggling due to the other party’s failure to pay alimony, child support, or obstructing the relationship with their child. If you are experiencing this and are in need of legal counsel, contact us today and learn of the options available to you.