Most people would like to believe that court cases are resolved when the Judge signs the final order — commonly referred to as the Final Judgment in family law cases. In certain situations, however, the Final Judgment requires enforcement. This can occur when one of the parties to the action refuses to abide by the requirements of the order. Issues of child support or alimony are easily enforceable in family court, as they are considered support issues and are enforceable by contempt.
The petitioner — the party seeking enforcement of the order — must file a proper motion with the court. This individual must also file a notice of hearing, which indicates the potential ramifications of failing to appear at the hearing, such as incarceration. For more information or to schedule a consultation, contact our Gainesville attorneys today.
Enforcement Of Support
In order to be found in contempt for a support issue at a hearing, the Court must find that there is a prior order directing the defaulting party to pay support; that the defaulting party did not pay all or part of the required support; and that the defaulting party has a present ability to pay the support and willfully failed to do so. It is important for the petitioner to be able to present the Court with information as to the defaulting party’s ability to pay support, such as sources for available income and assets. The petitioner may want to engage in discovery prior to a hearing on the enforcement matter in order to have this information available for the Judge. Once the Judge makes a finding of willful contempt, he or she may impose appropriate sanctions, which may include incarceration, awarding the petitioner’s attorney’s fees and costs, or ordering a compensatory or coercive fine.
If the Judge orders incarceration, or a compensatory or coercive fine, the Judge must set a “purge” amount based on the defaulting party’s present ability to pay. A purge is an amount that is due from the defaulting party within a reasonable amount of time in order to avoid additional sanctions. If the defaulting party does not comply, the Judge may issue a writ of bodily attachment ordering that the defaulting party is incarcerated. In some circumstances, the Judge may order the defaulting party to be immediately taken into custody at the hearing. Our divorce lawyers are available to help you — contact us for a free initial consultation to discuss your enforcement case today.
Issues With Enforcement
Other issues can be more difficult to enforce, such as payments from one party to the other for equitable distribution purposes or payments due for a marital debt that one party was ordered to pay. In this situation, contempt is not an available remedy. The remedies that are available include those that between creditors and debtors. For example, you may be able to seek a judgment against the defaulting party and/or a garnishment of wages. However, you will not be able to seek incarceration for the non-compliance of the order.
It is important to note that property distribution agreements are not modifiable. Sometimes circumstances change after the Final Judgment was entered which make a property settlement agreement harder to enforce or even unfair. However, in most circumstances, the family court does not have jurisdiction to modify the property settlement agreement to something that is different than what the parties agreed.
The extent to which a Final Judgment will be enforceable is largely dependent on how well the original settlement agreement and/or Final Judgment is written. This is one reason you should hire a family law attorney at the initial stages of your case. There are certain provisions that can be drafted to make support more easily enforceable and in some circumstances, you can add a provision to the property settlement agreement that will allow for certain matters to be enforceable by contempt.
Unable To Abide By Court Orders
If the Court finds that a party has failed to pay support, but the failure to pay is not willful (i.e. the defaulting party is unable to pay), the Court may order the defaulting party to engage in job searches or other actions that will lead to the ability to pay support. The Judge will have additional sanctions available, such as entering a judgment for the unpaid support. Most support issues are modifiable and it may be appropriate that the support order is adjusted based on specific circumstances.
For example, the defaulting party may have lost a job or source of income through no fault of his or her own and it makes it difficult or impossible to pay the support amount required under the current order. It is important for both the petitioner and the defaulting party to contact a child support attorney to discuss all available options before filing an enforcement action related to the payment of support.