Should I File for Contempt?

Speaker 1 (00:07):

Hello and welcome to Divorce Team Radio, sponsored by the divorce and family law firm of Merriweather and Tharp. I'm your host, Todd Orton and here you're going to learn about divorce family law from time to time, tips on how to save your marriage if it's in the middle of a crisis. If you want to read more about us, check us out online@atlantadivorceteam.com. Alright, let's get started. So we talk all the time about divorce modifications. These are actions in which parties are trying to establish rights and obligations show after show. We talk about things relating to the core divorce areas, legal standards, negotiation methodologies, how you have to deal with issues of custody, child support, alimony, division of property and debt. But are the settlement terms the ultimate goal or is the establishment of a legally binding agreement which can be enforced? The true goal? There's an old saying, we've all heard it.

(01:14):

If a tree falls in the woods and there's no one there to hear it, does it make a sound? Well, the metaphor that it asks does something matter if no one hears or sees it. And I think that applies here for the most part. And there are limited situations where an oral or informally written agreement can be binding, but that is the exception to the rule. The goal is not just to reach settlement terms, the goal is to memorialize those terms in a formal agreement that completely and correctly and properly addresses the issues in question. The goal is to finalize and execute an agreement or consent order that contains those terms to file that with the court and therefore the goal is to get that court to accept the terms and enter an order that adopts the terms and incorporates the agreement you worked so hard to obtain. So again, I posed the question, what's more important, the settlement terms or the court order that contains those terms. Frankly, and you're probably from me expecting this answer, I believe the answer is both. The two issues have something of a symbiotic relationship. One can't exist without the other, each benefits from the other. If there's no agreement or if there are no court ordered terms, it means that there's no court order without a court order. Is there really an agreement?

(03:15):

Is anyone truly bound by the settlement terms in question? You could have a great agreement. I've had people call me and they're like, oh, we reached an agreement 1, 2, 3, 4, whatever it is years ago and we've been doing things pursuant to that agreement. We reached at the kitchen table, but now the other side isn't doing what we agreed on. And oftentimes I have to say, look, we will take a look at this agreement you entered into, but you didn't do anything with it. If it's an issue of custody and parenting time, for instance, the fact that you entered into an agreement at that kitchen table a long time ago doesn't really mean much because the court will absolutely want to review that agreement to see whether or not what you agreed to two years ago is still in the best interest of the kids. So it's incredibly important to make sure that not only do you reach an agreement, not only that the agreement has all of the terms that you need to properly and completely protect you, but that it then gets incorporated into an order. Because once it's in that order, then you can enforce the terms and that's that's what I'm going to talk about today. It brings me to the question of the day. Can and should I file for contempt?

(05:01):

And I say it that way purposely, can you? Oftentimes the answer is yes you can. And some people stop there, meaning in terms of the analysis, they sort of stop just because they can, Hey, there is a term, this constitutes a violation. I'm going to go to court, I'm going to file for contempt. But should you sometimes the answer is no or at the very least not yet. Very generally speaking, a failure to comply with the terms of court order is defined as contempt. A legal action intended to address the issue of non-compliance is referred to as a contempt action. Sometimes as an enforcement action, sometimes you have no choice.

(06:01):

Sometimes strategically, maybe you don't want to pull that proverbial trigger, maybe you don't want to file right away. Sometimes it is better, gather more information, gather more evidence of additional violations by itself. It may not be enough to warrant going through the time and the effort to file a contempt action. Take the one incident, add it to five more, 10 more, whatever it may be. And now all of a sudden you have something far more significant. Now instead of saying, oh, this happened, this one thing, you can say, judge, where do I start? Well, here's this one thing and here's another one thing and another and another and another and another. And at that point the judge has to look at the other party and go, wow, you really don't care that this court entered a court order and that you have requirements under the terms of that order. You are thumbing your nose at the authority of this court. And you know what as judge I'm going to do and take steps to enforce my order and we'll talk about different types of sanctions and things of that nature.

(07:26):

So let's start with a basic definition. What is contempt? Well, civil contempt and there's civil contempt and criminal contempt. We're talking about civil contempt. You have, there are terms of a court order and you have violated those terms. So generally speaking, or in terms of a definition, civil contempt generally involves the failure to perform an act that is ordered by a court as a means to enforce the rights of individuals or to secure remedies for parties in a civil action. And examples of course in this context would be nonpayment of child support, uncovered expenses, interference with parenting time, those types of things in the family law and divorce context are fairly unfortunately common.

(08:32):

So what does it require and what does it mean for the parties involved? So number one, for there to be contempt or I guess you could say alleged contempt, number one, you need specific terms, doesn't matter what was intended I for the most part, and I mean 99% of the part, you need to have very specific terms. That is why we again and again and again on our website during this show, we will tell people it is so important you get it right the first time. The terms in the agreement that get incorporated into an order must be specific. If you're too vague, it's unenforceable or if you just don't cover everything that should be covered and we're going to go into that in more detail, then unfortunately the court may be unable to help because when you're saying, yeah, but the intention was this, the court will say, but it doesn't say that in the order, I can only basically enforce what's in the order.

(09:54):

So number one needs specific terms. Number two, there needs to be evidence of a violation of those terms. Non-compliance. Number three, evidence that the failure to comply was purposeful. Contempt has to be willful. For a court to find someone in contempt, they have to find that the order was entered by a court of competent jurisdiction and two, the charged parties in noncompliance with that court order. If you can do that, then basically you can look to the court for assistance and the court will take steps to make sure everyone is doing what they're supposed to. Alright, when we come back, we're going to keep talking about contempt actions. Let's go through the four core areas, talk about why specificity matters, talk about some strategies. We're going to talk about when you should or should not file, and then we're going to talk about defenses to contempt actions. We'll be right back.

Speaker 2 (10:58):

I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB, so you can always check us out there as

Speaker 1 (11:08):

Well. Better than counting sheep I guess, right? That's right. You can turn on the show and we we'll help you fall asleep.

Speaker 2 (11:16):

There you go, I'll talk

Speaker 1 (11:16):

Very soon.

(11:21):

Welcome back everyone to Divorce Team Radio, a show sponsored by the divorce and family law firm of Merriwether and Tharp. I'm your host, Todd Orton, and if you want to read more about us, you can check us out online@atlantadivorceteam.com. And if you want to read transcripts of the show or go back and listen to shows, again, you can find them@divorceteamradio.com. So today I'm talking about contempt, not a general contempt for the system or other types of contempt. I'm talking very specifically about non-compliance with court orders, which constitutes what's called civil contempt. Alright? If a judge tells you to do something, I can tell you right now for the most part, and I will tell you 99.9999% of the time, I'm going to have to say to you, look, you have two choices, comply or take steps to modify that order. And that's not always possible, but you really don't have another option because the third option, which is basically just thumb your nose at the authority of the court, don't do what you are supposed to do. It's not a good option that could land you in really hot water.

(12:49):

So that's what we're talking about today. I'm talking about contempt actions. Can you file should you file? Because just because you can doesn't mean you should. And as we go through the core areas, I'm going to explain what I mean by that. You might be listening, going, what is there to talk about? I have a court order. If Todd, if you're telling me that even though I have a court order that requires certain behavior that I shouldn't look to the court for assistance when there's a violation, that doesn't make sense. Well, I'm not saying you shouldn't protect your rights. What I'm saying is that contempt actions like divorces, like modifications, it's a process and just because there has been a violation doesn't mean that you're going to get the W. It doesn't mean that you're just going to be able to go to court and what all of a sudden the other side's going to be thrown in jail and tarred and feathered and whatever other, they don't do that, but that the court's just going to sanction and punish and maybe even jail. The other side, as angry as you may be at your ex retaliation, retribution, whatever, that's not what the court's about. The court is 150% focused on one thing and one thing only. Compliance with the court's order.

(14:41):

If everyone's complying, great, the court's basically saying, leave us alone, come back when you need us. But if someone is not complying, if the terms say jump and you don't jump, the court wants to know why. I've never seen an order that requires you to jump, but you understand my point. So let's go through some let's of the core and out some, let's go through the core areas and we'll start with obviously one of the most important custody and parenting time violations or alleged violations come up in this core area all the time. Interference with parenting time, failure to communicate on major issues, failure to abide by notice requirements like okay, if you relocate more than X number of miles away from the current residence, you have to give 30 days, 60 days, 90 days notice, but you just go ahead, pack up and move.

(16:02):

It could even be things relating to just communication, refusal to communicate harassing or negative communication, disparaging comments made to third parties or to the children, putting aside whether or not any of those rise to the level of requiring and justifying modification, which is formally changing those terms. Contempt is simply enforcement. It is simply the court saying you will abide by these terms until this court or another court of competent jurisdiction changes the terms. These are the terms, so do what you're supposed to do. So custody and parenting time, it comes up all the time. So when should you file? And this is going to be a common theme, what I'm about to say. It really doesn't matter whether we're talking about custody or child support or alimony or division of property and debt.

(17:14):

So remember what I was talking about in terms of what you need to prove. You have to show that there are terms specific to the issue that you're bringing to the court's attention. There has to be evidence of a violation of those terms, IE non-compliance and you have to show that the failure was purposeful, that they could have complied but they have chosen not to. So basically when should you file? Well, if it's a recurring, purposeful, intentional kind of behavior, then again focused on the word recurring, then it may justify it. It probably does justify it. This is interfering with your relationship and your ability to parent a child.

(18:12):

So even one violation may justify it, but remember, I mean you may assume the worst of the other party, but you need to put your emotion aside because the court is not going to be emotional about this. So focus on the purposeful intentional aspect. If this was a one time thing, maybe there was a miscommunication, whatever, you may assume the worst, you may assume that the intention was just to rob you of time, but if it's one time, maybe going to court at that moment is not the right thing. Now, if it was something serious, it's a big holiday, it's an extended visit. If they are doing something and interfering with your ability to exercise that look, if you lose Christmas and especially if it's a on off kind of thing, then that means it could be another two years for you to get Christmas.

(19:23):

The best thing is identify whether or not that's going to be happening and then try and get into court even before the holidays come see whether or not there's an ability to file your contempt before the holiday as opposed to afterwards when you're saying up they violated, maybe there's a statement, Hey, you are not going to have this parenting time, in which case you might be able to file an emergency with the court, but you need to really look at any and all incidents. If it's one small thing and especially if there's some kind of a justification, excuse reason, whatever, I'm not saying it's right, but what I am saying is maybe you don't want to go forward with a full contempt action because what you want is to be able to, and again this goes for every area, core area you want to show the court, you try to avoid filing, you want to communicate respectfully with the violating party.

(20:32):

I don't care how angry you are, ask them to discuss how you can avoid these issues in the future. How you can resolve, let's say it's lost parenting time, how you can resolve that. Hey, you took my weekend, how about this? This can't happen again, but how about I'll take next weekend? A positive response may resolve the issue or it'll show their true colors and you have even more evidence to use against them. If it's something really small, maybe you don't want to do something at that moment, tell them in writing, this is unacceptable and it happens again. And please understand, I'm going to court, I'm going to file a contempt. Now what you've also shown the court is you're doing everything you can to avoid it. And also remember the court can only do so much. So you may spend a whole bunch of time, money, and effort and get nothing more than an order that is nothing more than a stern lecture to the other side. Whereas you gather more information, more evidence, and maybe it's enough not only to warrant the contempt order, but maybe it opens the door to a modification.

(21:52):

Alright, I have a few more things to talk about in terms of custody and parenting time and then I'm going to continue with the other core areas and then we'll go into defenses to contempt actions. We'll be right back. Hey everyone, you're listening to our podcast, but you have alternatives, you have choices. You can listen to us live also at 1:00 AM on Monday morning on WSB.

Speaker 2 (22:17):

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Speaker 1 (22:29):

Welcome back everyone to Divorce Team Radio sponsored by Meriwether and Tharp. I'm Todd. And if you want to read more about us, check us out online@atlantadivorceteam.com. You want to read transcripts, listen to shows, go to divorce team radio.com. So today I'm talking about contempt IE an action to deal with a violation of a court order. When should you file? Should you file? And I've been talking about, we start on the court areas, I started talking about custody and parenting time. Contempts come up all the time. I mean unfortunately all the time and sometimes people will call and they'll be like, Hey, I have an order and it says this and I want to file for contempt. And sometimes that makes sense and sometimes I have to do a little bit to talk that person off the emotional ledge.

(23:37):

And please understand I am not defending non-compliance with the court order. Don't take what I'm saying right now to mean, oh well they took some time from you or they violated your rights in some way. Well they got away with it too bad. That's not what I'm saying. What I'm saying is sometimes strategically speaking it is more powerful if it's something you can live with for that one time, it's more powerful to gather that information, hold onto it, communicate your displeasure, communicate that that's unacceptable. Communicate the promise. I don't want to use the word threat. The promise that the next time something like this happens, you are absolutely going to be filing a contempt with the court and we will be asking for all different types of sanctions and I'll go into that in a minute, but that could include a number of things. Actually I'll deal with that right now.

(24:43):

Remember, when you're dealing with custody and parenting time, what will sanctions look like? There's not going to be jail, alright? I mean I don't think in my career I have seen someone go to jail on a custody related issue. I'm not saying it doesn't happen, it's very, very uncommon. So remember if what you're looking for is makeup time and what you're looking for maybe is hey, I want legal fees and maybe jail. Well jail's probably not going to happen. Maybe you'll get some legal fees, but remember also you have to go to court, you have to show that it was purposeful that there wasn't some just mistake that they intended to violate the terms. So you may get to court and really all you get is a court order and a finding of contempt, which strategically can be important because if you are foreseeing a need in the future to modify and part of the justification for the modification is non-compliance with the court order violation of your rights, a finding of contempt can be incredibly valuable, but that also goes back to do you file a contempt every time there is a sort of a small violation or you gather a few of those small violations and then it looks bigger because now you have recurring behavior, recurring violations, you have a stronger argument that the other party is simply noncompliant.

(26:35):

They don't care judge that there's a court order. They don't care that they are under the requirement to engage in whatever the behavior is and they're again thumbing their nose at the court's authority.

(26:52):

So when it comes to custody and parenting time, makeup time is definitely a possible sanction and legal fees also, but you're not going to get some financial windfall because of it. You're not going to get more child support, you're not going to get more anything. The other thing I will say is when you should not file a contempt or at least you should really, really talk to an attorney and go over the strategy, you need to have clean hands here. I have seen people who play games and they poke and they poke and they poke and the other side does something and then they race to court. They're like, oh, the other side violated the terms and you get into a hearing and the whole story and now the rest of the story and the rest of the story is you were also violating terms, you may have taken some time away.

(27:58):

So they responded by taking time from you and then you think you're going to go to court and that you're going to have a judge incensed by that violation and best case scenario, the judge is going to look at both of you and say stop it. Worst case scenario, the court's going to say sir or ma'am, you're sitting here asking this court to sanction, but it looks like you have unclean hands. It looks like you may have created some of this problem. So no, I'm not going to hold the other party in contempt and now it makes you look bad.

(28:34):

So you definitely have to think more strategically when using these contempts. So what about child support, child support, failure to make basic payments to pay uncovered expenses. Again, be reasonable. One missed payment and I'm not saying it's okay, don't get me wrong one, missed payment, communicate, this is unacceptable, please tell me I'll work with you if you had a rough month, I'll work with you but I need to know when you can catch up and make the missed payment. Do that in writing and now you have great evidence that shows you're trying to work through the issue. I have seen people the day after a payment is late and there are no other missed payments basically calling saying I'm going to file for contempt and I have to look at them and say, well you have that right because technically there's a violation but unfortunately you may worse than the other party.

(29:43):

You may want to show that you're willing to work on this to try and fix this. And remember also you have to show that the failure to pay was intentional despite their ability to pay and to comply with the court order. So when it comes to child support, I will tell you you can't let it get out of control and sometimes it's not a matter of non-payment. Sometimes it's what may justify filing is just consistent. Late payments supposed to be paid on the first, last month it was the fifth, the month before that it was the eighth, the month before that it was the 15th. If the other side is paying for all of their own expenses and refuses to pay child support in a timely manner at some point sooner rather than later, I absolutely would recommend to someone calling me, you need to go ahead and file a contempt show that you have in writing said that's unacceptable.

(30:54):

It's affecting your own finances and ability to pay expenses and it can't happen. It is due on the first and from it's happened 1, 2, 5, 10 times. So please understand it can't happen again. If it does, you're leaving me with no choice but to go to court and file a contempt and once again, you have great evidence that shows I tried to avoid this. I don't want to be in court right now. I didn't want to file a contempt. They left me with no choice because we've all heard the stories and many of you listening have experienced this.

(31:31):

Late payments can be an issue of has nothing to do with budget. It's an issue of control. I'll give you money that I don't really want to be giving you when I want to give it to you. Oh, I'm sorry that's affecting your ability to pay bills. Not my problem. A contempt is there to make it their problem. But again, gather up that information and talk to someone to see strategically does it make sense on the first violation on day one or wait until the 15th day, wait until the 30th day, wait until they're one month behind, two months behind. Maybe that makes more sense but you definitely, I will say this before we go into the break that you don't want to let this get away from you don't wait months and months and months because unfortunately I know it's affecting your budget and if you wait months and months and months and you're getting nothing, I'm not a dollar. Their obligation could be $500 and you're not getting anything. Just remember budgets are what they are. You go back to court, one of the sanctions will be repayment. But if they can show the court I only make this much money and I can't pay the normal child support ongoing and the arrearage, then

(33:04):

It's going to take potentially months or even years sometimes to repay that arrearage. So don't let it get out of control. Alright, what else is out of control is have to go to another break. Alright, when we come back, I'm going to finish the core areas and then we'll talk about defenses. I'll be right back.

Speaker 2 (33:21):

I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB, so you can always check us out there as

Speaker 1 (33:32):

Well. Better than like counting sheep I guess, right? It's right. You can turn on the show and we'll help you fall asleep.

Speaker 2 (33:39):

There you go. I'll Todd,

Speaker 1 (33:46):

Welcome back everyone. I'm Todd. This is Divorce Team Radio show sponsored by Merriweather Tharp. If you want to read more about us, check us out online@atlantadivorceteam.com. You want to read transcripts, listen to shows, go to divorce team radio.com. I'm talking quickly because I still have a lot I want to go over. We're talking about contempt. Just because you can file doesn't mean you should file just because a day after something was supposed to happen, you may technically be able to file a contempt. Doesn't mean strategically, it's the smartest move. We talked about a very common area where contempt comes up and that is custody and parenting time. We talked about child support, another area, late payments, non-payment. The other issue that comes up oftentimes, like I was saying before, is uncovered expenses. When it comes to that, I will tell you just because you can doesn't mean you should make sure you review your order and you are comfortable with what it says in terms of the notice that you need to give that other parent. If you're supposed to give them receipts of actual payment and you don't do that, that can affect your ability to file a contempt. If you are asking the court to require strict adherence to the terms of an order, then you must go into court strictly adhering to the terms of that court order. If it says every time you incur a bill a cost for a child, you're supposed to do X, Y, Z, make sure you do X, Y, z. Going in and saying, yeah, well they knew that I got braces for our son.

(35:36):

Okay, I get it. But if it specifically says that evidence of the payment shall be provided and you don't do that and then you're standing in front of a court going, well he knows or she knows that our child now has braces and clearly there's a cost and I told them on the phone, if you haven't followed the terms, then unfortunately the other side may not be held in contempt time effort wasted. So what about alimony? Alimony is going to be very similar. It requires payment and if the payment deadlines are missed, the same thing goes for child support.

(36:25):

Should you the minute after it's late, should you be racing to court? Oftentimes I will say no. If there are 1, 2, 3 payments and you have put together the evidence necessary to show you have tried to fix the problem and resolve the issue with the other party and they're not doing anything to rectify the problem, then yes, it may absolutely be time. So in terms of nonpayment, in terms of the late payments similar to child support, you can't allow the other side to control you or try to control you by not paying or late payments or whatever. But as with every area, communicate clearly, show that you're trying to avoid the problem, avoid the filing. That way when they're looking and going this contempt, they're just trying to create problems. They're angry because I'm dating and they're angry because of dah, dah, dah, dah.

(37:37):

You can very clearly show has nothing to do with that. I don't care who he's dating or what he's dating, doesn't matter. He's supposed to be paying this amount per month, he missed it by three days this month, seven days, the month before, nine days, the month before that. That's affecting my ability to make payments and to pay bills. And judge, I've begged him to stop. Here are the communications. Then at that point the court will look at him and say, sir, can you explain why you're not paying on the first like you're supposed to? Well my expenses are, well, I don't care. Are you paying other expenses? So you're paying your mortgage. Yes. So your mortgage is more important than this court's order where I have ordered you to do something. Well the bank, I don't care about the bank. You should manage your finances so you can pay the bank and comply with this court's order.

(38:37):

So alimony the same thing. Child support and alimony, very similar because of course we're dealing with the payment issue. Equitable division of property, this is where again, it's so important you have specific terms because child support is very clear. Alimony, it's clear on this day, every month you will pay this. It's pretty simple. Equitable division. This is where you really want to give more thought. And I'll be honest with you, I could spend an entire show talking again about these issues. But for instance, division of property, a house, if you do it right, you could have two to three pages of terms relating to the sale of a house. When's it going to be sold? Who's going to live there? Who's going to pay the carrying costs? Will that person get reimbursement from the sales proceeds? What happens if it doesn't sell for this amount of time?

(39:39):

What happens if the party living there while it's being sold takes steps to interfere with the sale? What if somebody has an obligation to sell or refi and pay you the amount of money you're supposed to get? What if they miss that deadline? You can't just say they have to do it. You have to say they have to do it. And if they don't, this is what's going to happen. If you are vague, if you don't deal with the issue specifically, you won't be able to successfully pursue a contempt because the judge will say, but the order doesn't say that. So you must must be very, very clear. And lemme also go back and I apologize for jumping around child support. Where that is different than any other area is the sanctions can be much more significant and impactful on you. You could lose your driver's license, sporting licenses, professional licenses, obviously there's repayment plus 12% interest on the arrearage.

(40:51):

I have seen people who go years without paying and they're like, well, I owe $18,000 and I have to look at them and go, well hold on one second. You haven't paid in six and a half years, you do not owe 18,000. Yes I do. Here it is, this many missed payments and I have to look at them and go, you're not accounting for the accrued interest. I've seen people who would've owed 10,000, oh, 30 or more. There can be garnishments, it can affect, there can be jail legal fees. I've seen social security garnished. So bottom line is there are a lot of other sanctions when it comes to child support. But alright, defenses, this is where it goes to. And in the two minutes I have left very quickly, this is where it goes to the willfulness. If there's an inability to pay then, so if somebody says, I just lost my job.

(41:59):

I didn't pay you yesterday because I literally lost my job and have $2 in my bank, the court likely won't find them in contempt. If someone questions the validity of the order in question and it is voided, well then it doesn't exist. You can't file a contempt based on that. If there's a change of custody, then basically that can impact child support, which means it can impact issues of contempt. If basically there are, and we have on our website more supplemental payments, benefits received, social security and things like that, that can impact payments that are due, which can of course impact your ability to pursue a contempt. If it's vague. This is what I was going into before, if you don't put the right terms in, then the court won't be able to give you the help that you're looking for because all the court can do is basically say, I'm going to enforce the terms as written.

(43:13):

If you don't write good terms, then the court's going to look at you and say, I understand. I understand why you're here. I understand what you want this court to do. The problem is what you are saying, the order says, it doesn't say so. What is in your mind in terms of what you thought it meant has little to do with whether or not the court can actually enforce orders and terms. Alright, so there's a lot more, and contempt is definitely one of those areas where even if it's just a consultation, pick up the phone, talk to an attorney and make sure every step of the way when you are filing that you do have clean hands. That because another thing I'll leave you with a contempt to be responded to with a contempt, you're opening up Pandora's box. Sometimes it's unavoidable, but if you know you've done some things to interfere with parenting time and they owe you $20, you file an action for $20 and next thing you know you're responding to a contempt filed against you for interference with custody and parenting time. Hopefully this helped. Thanks.