Parties in a pending or post dissolution environment who have obtained a child support order often do not receive payments due to one parent’s shirking his/her responsibility, financial mismanagement, or other reasons. One option for a party who is not receiving the child support payments which were ordered by the Court is to file a Request for Order and Affidavit for Contempt. A contempt is an enforcement remedy which enables the court to compel compliance with its orders.
The Court may use the contempt power to enforce an order made in a family law proceeding, unless its use violates the constitutional prohibition on imprisonment for debt. Generally, a person who willfully disobeys any lawful court order that he or she has knowledge of and has the ability to obey is deemed in contempt of court and may be required to perform community service or be punished by a fine or imprisonment, or both. Orders which are enforceable by contempt include failure to pay support, failure to convey community property, and orders for the payment of attorney’s fees and costs.
Upon filing a Request for Order and Affidavit for Contempt which states the facts of the alleged contempt, the court will issue the Request for Order and set it for hearing. The first hearing is generally an arraignment where the party charged is advised of their constitutional rights and the matter set for trial. At the trial, both parties may present evidence and argue in support of their positions. Under the 5th Amendment, the party cited has a constitutional right to remain silent and cannot be compelled to testify.
If the contempt is successful, generally, a person who is convicted of contempt may be punished by a fine not exceeding $1,000 per count or by imprisonment not exceeding five days per count, or both. There are additional penalties for a contempt of family law orders which state that the court must order the contemner to perform community service of up to 120 hours, or to be imprisoned for up to 120 hours, for each count of contempt. Additionally, a contemnor who has violated a court order may be ordered to pay attorney’s fees and costs incurred to the party who initiated the contempt proceeding.
Filing and pursuing a contempt can be a very complex and hard-fought battle. Before making a decision to file such an enforcement mechanism, it is best to consult an attorney who will discuss with you different enforcement options and, hopefully, help you find one which best suits your particular case.