After the many court hearings for a divorce or legal separation, you may feel that all of your legal issues have been settled. The case has ended and you’ve been awarded child support, alimony, or child visitation. But what happens when your former spouse isn’t following the court order?
Whether temporary or part of the final settlement, orders given by the court can be enforced so that you can get the financial support you need or be able to finally spend time with your children. The first step is to reach out to an experienced divorce enforcement action attorney in Oceanside, California. The law firm of Fischer & Van Thiel, LLP is home to a number of representatives that can help you enforce your divorce settlement.
What is considered contempt in a California divorce or legal separation case?
If you have been granted certain rights by the court, but your former partner is intentionally not cooperating or complying, then they may be held in contempt of court. It is largely believed, due to TV courtroom shows, that being held in contempt of court means you are being unruly or disrespectful to the judge during the hearing. This certainly can happen – but it is more likely for someone to be found in contempt following the trial.
Any order the court issues during or after a divorce is considered legally binding. When someone intentionally ignores a court ruling – such as sending spousal support payments or not adhering to certain a court-approved child visitation agreement – then that person is considered to be in contempt of court.
Filing contempt will pressure the accused party into complying with the order. If they still willingly refuse to follow the order, then consequences will follow.
What constitutes as contempt?
If you are having an issue with enforcing a judgment for your divorce case, it is important that you understand what constitutes as contempt. While a knowledgeable California divorce enforcement action attorney can provide you with information about divorce enforcement actions, we’ve also provided a brief summary of what could be considered as contempt.
One of the most important things to note is that when deciding whether someone is in contempt of court, their intention is a key factor. As the accuser, the burden of proof will fall on you and your legal representative to show that someone is in contempt of court. You must prove that the accused party meets the following criteria:
- They were aware that the order existed
- They were able to comply with the order, but violated the conditions knowingly and willingly
- They do not have a reason or excuse for the violation
You may feel that it is difficult to prove intention, but there are situations in which you can show that a court order was purposefully ignored. For example, if a court order allows you to visit your children at a specific time and your ex-wife refused to meet with you, with no valid excuse, then she would be found in contempt of court. However, if she does have a valid excuse, such as her car broke down or there is some other emergency, then the court would understand that she did not have the capacity to follow the order at the time.
With that said, in many of these cases, it is not uncommon for the spouse or former spouse to make up excuses for why they were unable to comply. Due to this, your divorce attorney may encourage you to send a warning letter prior to filing for contempt. Your warning letter will explain the current issue and include a clause explaining how they can fix the situation before a court action is filed. This will show the court that you attempted to work with your spouse in good faith before resorting to enforcing your divorce agreement via the court system.
What type of divorce or legal separation actions can be enforced?
In divorce, contempt is most often a result of violating a court order. Once the dust has settled in a divorce, one party may feel that they got the short end of the stick and they become resentful of the orders given. This can lead to them refusing to follow orders that the other spouse may need to rely on in order to move forward following the divorce. That’s where a family law or divorce enforcement action attorney can help. If you need help enforcing the judgments given in your divorce case in Oceanside, CA, then a divorce enforcement action lawyer can help.
Divorce judgment enforcement cases traditionally involve:
- Child Support
- Child Visitation
- Spousal Support or Alimony
- Failure to Sell Property as Agreed in the Settlement
- Violating the Provisions for Dividing Funds or Retirement Accounts
An experienced family law attorney will help you decide what’s the next step for you and your family. Taking your case to court immediately may not always be in your best interests. If there is little evidence that the accused party is not complying intentionally, then you may want to send a warning letter before bringing the issue in front of a judge. Additionally, a divorce enforcement action lawyer will help you determine if it makes financial sense for you to try and enforce the judgment at this time.
What is the process of filing for contempt?
The most effective way for you to ensure your divorce judgement is enforced is to file a motion of contempt with help from an Oceanside attorney. If you believe your spouse or former partner is intentionally breaking their court order, you want to be sure you have the evidence needed to back up your claim. The professional lawyers at Fischer & Van Thiel, LLP are here to help you file your divorce enforcement action. Domestic litigation can be complex. Using our knowledge of divorce and family law, we can help determine how successful your case will be. Depending on the case, your spouse may be held responsible for your attorney fees by the court.
An divorce enforcement action attorney can also help you ensure the following before you file:
You have a strong case
Before you file a motion against your spouse or ex-partner, you want to make sure that a violation has actually occurred. In order to prove that they are in contempt of court, you’ll need solid evidence to show that they intentionally disregarded the order, despite their ability to carry it out. You or your divorce enforcement action attorney should review your divorce settlement carefully to ensure you fully understand the decree.
You have a set goal or resolution
When enforcing a divorce court order, the intent is not to send the offending party to jail. You want to ensure they comply so that you can receive the financial support or the time with your child that you deserve. It is important to keep your end goal in mind — whether you decide to go to court or you plan to send your spouse a warning letter to put them on notice.
Filing a Motion of Contempt for Divorce Case
Once it has been established that your ex has violated the terms of your divorce settlement, then your attorney will file a contempt motion with the same court that issued the original order. A hearing date will be scheduled and the proper paperwork will be served to everyone involved.
At the hearing, you’ll present the judge with evidence and they will hear the offending party’s reasoning for not complying with the order. Then, the judge will determine whether or not the motion of contempt will stand. If the judge decides in your favor, an order will be written to specify the resolution for the issue.
What are the consequences of contempt?
Once the court has decided that someone is responsible for paying certain debts, child support, spousal support, or agreeing to child visitation, if your spouse fails to meet that obligation, you can file a motion to show cause for contempt.
This original filing does not automatically lead to serious consequences. Often times, the judge will give the accused spouse a second chance to make up for the infraction and do what the order requires. However, if they fail to comply within the allotted time given (without a legitimate reason or excuse), then there can be both civil and criminal penalties enforced by the court. Penalties can include:
- Order to pay the accusing party’s attorney fees
- Compensatory custody time
- Jail time
Since the goal of a contempt action it to ensure a court order is complied with, if the offense is withholding spousal support or child support, then the court is unlikely to pursue further punishment once the back support has been paid. The court may, however, order the spouse that is in contempt of court to pay a little extra for their support payments until they’re caught up.
Payment may also be received for economic losses that occurred as a result of purposeful inaction by the accused party. One example would be if a couple had an agreement that one was responsible for paying for a car loan. If the responsible party stops submitting payments, and the car is then is then taken away, this could result in the other spouse being unable to go to work. In this situation, the court may rule that damages need to be paid for that economic loss. This is, of course, if the accusing party can prove “with reasonable certainty” the amount of the loss and that their spouse had the ability to pay, but chose not to.
Disputes over child visitation are a bit more complex. If one spouse is withholding visitation, there won’t be financial compensation, but the judge can award the accusing spouse more time with the children or even alter the original custody agreement. This can be done with a motion to modify, which your legal separation or divorce settlement enforcement lawyer can assist you with.
It is rare for a court to issue jail time in order to enforce a divorce settlement unless the spouse in question is a habitual offender. However, the threat of jail may be used as an ultimatum to motivate the accused party to take action.
Contact Fischer & Van Thiel, LLP for a Consultation for Your Divorce Enforcement Action
The goal of filing a motion for contempt is to pressure your spouse and to get them to comply with a court order. If they’re delinquent in child support payments, missing spousal support payments, or denying you your child visitation rights, then an experienced divorce enforcement action attorney can help. At Fischer & Van Thiel, LLP, we’re dedicated to helping clients in Oceanside, California, receive the compensation or child visitation time they deserve. Let us represent you when filing your divorce enforcement actions. We can fight for you in court to ensure your ex has to follow the court’s mandate.
If you feel your spouse is purposefully violating your divorce court order, contact the team at Fischer & Van Thiel, LLP today. We can help you determine if filing a motion is right for you.