A court that renders a final decree of divorce retains the power to enforce all aspects of the divorce decree. If either party to the divorce violates the court ordered divorce decree without first motioning the court for modification that party is said to be in “contempt of court.”
Motion For Contempt of Court
If your ex-spouse violates any aspect of the final decree of divorce, you can file a motion for contempt of court. You can do this as a pro-se litigant or through your attorney. A copy of the contempt motion has to be served upon your ex-spouse.
If you have an attorney, he/she will take care of serving your ex. If you are a pro-se litigant you can call your court clerk for information about forms you need to file and laws pertaining to giving notice to your ex-spouse.
The motion must state what areas of the final decree have been violated and why the ex-spouse should be held in contempt of court. The burden of proof during a contempt hearing is on the injured party. If you feel there has been contempt, be prepared when you go to court to prove your accusations. Some issues that are commonly violated are:
- Child Support
- Child Custody
- Property Distribution
Guilty of Contempt of Court
If you are able to prove that your ex-spouse is in violation of the court-ordered divorce decree, then a judge may order them to be jailed for as long as the contempt continues. Most judges will give the guilty party a chance to immediately comply with the aspect they are in violation of.
The judge will write an order holding your ex-spouse in contempt and specifying how they can purge themselves of the contempt. The judge may order them to immediately comply or give them a certain amount of time to do so. Every state has laws that would allow your ex-spouse to seek an early release or no jail time at all. Some grounds for no jail time are:
- No one to care for dependent children
- Loss of his/her job
- Physical or emotional disabilities
Examples of Contempt of Court
Here are two examples that may be helpful to understanding contempt of court in your situation.
Joe's violation of child support
Joe was ordered to pay $850 a month, on the first of each month, in child support. He and his ex-wife shared equal custody of the children. He makes six times the income his ex makes and, for that reason, the judge ordered him to pay child support based on the state's guidelines on the matter.
Joe felt that since the children were with the mother as often as they were with him, that it was unfair he should have to pay child support. He chose not to pay the court ordered child support. His ex filed a contempt of court motion and he was given 30 days to pay the $5,100 of accrued child support. The judge signed an order garnishing his wages for it.
It doesn't matter what one party in the divorce believes to be fair or unfair. What matters is how the laws in the state compel them to adhere to the divorce decree, and by extension child support payments. In this example, Joe not only was forced to make the payments, he also suffered the humiliation of having the court contact his employer about his wages.
Jane's violation of visitation
Jane's divorce decree allowed her ex-husband to see his children one night a week for dinner and every other weekend for regular visitation. The decree also stated that Jane was to share educational records and information with her ex and keep him updated with any medical issues.
Jane regularly withheld information from her spouse and refused to honor the stipulations of visitation. This includes a lack of communication about the visits. Her ex filed a motion for contempt of court based on parental interference. Because Jane refused to promote a relationship between her ex and the children, the judge reversed the custody stipulations of their decree. In extreme cases, a judge may remove custody from one parent altogether.
Follow the Decree
Some people will say that a divorce court order is nothing but a "piece of paper." In fact, it is legally binding, and no matter how insignificant it seems, the court will uphold it along with due process of the law. If you feel that you cannot uphold it, bring this up in court or speak with your attorney about doing so.