Going through a divorce can be extra frustrating when an ex gets away with violating court orders. Fortunately, there are ways to deal with those who do not play by the rules. One such method is filing a contempt of court motion.
There is a multitude of court orders that when violated, are subject to contempt motions, such as child support, spousal support, and child custody orders, just to name a few.
When a judge holds a person in contempt, it is as serious as it sounds. The penalties following a conviction for contempt can be significant, including jail time, fines, restitution, and community service. In addition, the court can order an ex to pay the moving parties’ attorney’s fees related to the preparation and prosecution of the contempt motion. Thus, under the right set of facts and circumstances, filing a contempt motion can be a powerful method to educate the other person that court orders are not mere suggestions.
As enticing as it sounds to see an ex punished by the court, filing this motion should be made only after careful consideration of the evidence needed to succeed and how the court is likely to view the reasons and necessity of filing the motion. In other words, will the motion pass the “smell test?”
Contempt of court motions are complicated, making them difficult to prepare and prosecute. Indeed, the technical components in prosecuting a contempt motion should give most litigants pause, especially without first seeking the advice of counsel. Unfortunately, all too often, parties blindly plow ahead with filing contempt motions and then realize they are in way over their head.
In deciding whether to file a contempt motion, first determine if you have evidence to prove the following four elements of contempt: 1) Was there a valid court order; 2) Was the opposing party aware of the court order; 3) Was the opposing party able to comply with the order, and 4) Did the opposing party violate the order.
Sounds simple, right? Well, it’s not. Each element has its own pitfalls that need to be heavily analyzed.
Second, determine the strength of the evidence. Parties will prevail only when they prove their case “beyond a reasonable doubt.” Meeting this burden of proof is very difficult, especially considering the ex’s Fifth Amendment right not to testify. Thus, one should not count on proving contempt by grilling an ex with cross-examination questions because of the strong possibility he or she may decline to take the stand.
Filing a contempt motion should be done only as a last resort. In most cases, there are other methods to correct the bad conduct of an ex that are much more effective and less costly than filing a contempt motion. For example, a party may seek monetary sanctions under the family code when a party engages in bad behavior.
Minor violations of court orders should not be the subject of a contempt motion. An example of a frivolous contempt motion would be filing after a parent shows up fifteen minutes late to drop off a child. Another example would be filing after a parent is a couple of days late in making a support payment.
Likewise, one should never file a contempt motion based on a petty grievance. Family law judges become annoyed when people file frivolous motions and usually order the losing party to pay the other party’s attorney’s fees. Moreover, based on the frivolity of the contempt motion, the judge’s attitude about a litigant’s credibility may be tainted for the rest of the case.
At the end of the day, consider what you are likely to get by filing a contempt motion. The attorney’s fees and costs associated with a contempt motion can be hefty. If all one accomplishes is getting the judge to slap your ex on the wrist, then it is probably not worth the time, effort, and money spent on the motion.
In summary, filing a contempt of court motion should be reserved for cases where there is:
Egregious conduct that needs to be punished and corrected.
Where there is compelling evidence of the ex’s violations.
When the costs would justify the outcome.
Without a doubt, people who are allowed to play by their own set of rules make a mockery of the system. Bad behaving people need to be held accountable for our system of justice to work. However, before deciding to file for contempt, make sure you have all your ducks in a row. Otherwise, you may end up exacerbating the problems you were trying to resolve.