Enforcement of Court Orders in Divorce, Alimony & Child Support Cases
Most people would like to believe that a court case is resolved with finality when the Judge signs the final order, which in most family law cases is the Final Judgment. However, it is an unfortunate reality that sometimes it is necessary to enforce the Final Judgment because one of the parties to the action is not abiding by the requirements of the order.
Some issues, such as child support or alimony, are easily enforceable in family court. Child support and alimony are considered support issues and are therefore enforceable by contempt. The petitioner (the party seeking enforcement of the order) must file a proper motion to be heard by the Judge and must file a notice of hearing which indicates the potential ramifications of failing to appear at the hearing, which may include incarceration.
Enforcement of Support Hearings
At the hearing, in order to be found in contempt as to a support issue, 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, the Judge 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 be incarcerated. In some circumstances, the Judge may order the defaulting party to be immediately taken into custody at the hearing.
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 does not have the present ability to pay), the Court may order the defaulting party to engage in job searches or other behavior that will lead to employment and 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 modified. For example, the defaulting party may have lost a job or source of income through no fault of his/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 an attorney to discuss all available options before proceeding in an enforcement action related to the payment of support. Contact one of our attorneys to discuss your options. We offer free initial consultations.
There are other issues that are 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 are those that are available 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 an attorney at the initial stages of your family law 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 even though generally property agreements are not enforceable by contempt.
Contact one of our divorce lawyers at the Law Office of Silverman, Mack & Associates for a free initial consultation to discuss your enforcement case.