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WHAT HAPPENS WHEN
SOMEONE DOES NOT COMPLY WITH A COURT ORDER?
So, your
husband/wife didn't pay you the child support? Or perhaps he/she didn't give
you visitation with your children as ordered? Or perhaps you didn't receive
the monies from a retirement fund or sale of the house that you were
supposed to get. What do
you do? What is your
remedy?
You and your
spouse, former spouse, or father/mother of your child may have
entered a stipulation of the parties, that
is an agreement between the two of you, regarding certain
issues. This stipulation
may be entered as a court order, that is on a
temporary basis, or as a final judgment, meaning the matter
has ended. Or, perhaps
you didn't agree when you were in court, and the matter was brought
before the court, and the judge issued either an order or a judgment
in the matter. Either
way, the parties' obligations and responsibilities have been
established. Now it is up
to each party to fulfill their obligations.
Unfortunately,
there are many times when individuals, for various reasons, fail to
adhere to a court order or judgment. Sometimes, this failure to
comply may occur only once, or it may continue on a regular and
consistent basis. In
either case, the party who feels aggrieved, that is who is not
getting what he/she was ordered to receive, may bring the matter to
the court's attention by filing a Complaint for Contempt.
The Complaint for
Contempt may be based on civil contempt, which may bring monetary
sanctions and punishments, or it may be criminal contempt, whereby
the court may order a variety of punishment, including incarceration.
The basis for a contempt must be that there was a clear and
unequivocal order or judgment of the court, that the defendant, that
is the wrongdoer, knew and was aware of the order, and deliberately
and willfully disobeyed that order.
Sometimes the
defendant will argue that there was a "side agreement" made
between the parties. This
topic has been addressed in a prior newsletter of November 2009. While it is highly unlikely
that a court will accept the idea that there was a "side
agreement," a judge will consider all of the circumstances to
determine whether the defendant deliberately and/or intentionally
failed to comply with the court order.
When a Complaint
for Contempt is filed, a summons issues, and the defendant must be
served at least seven days prior to the hearing date. At the time of the hearing,
the parties will likely go to the probation department to attempt to
resolve the issue. In the
event that the issue is not able to be resolved, the matter is
brought before the court, and the judge will listen to the parties or
their respective counsel prior to making a decision. If a judge finds a defendant
guilty of contempt, a judge may order a range of punishment,
including but not limited to payment for attorney's fees, lost wages,
service fees such as constable or sheriff fees, and depending on the
circumstances, and whether or not the defendant is able to resolve
the issue at the time of the hearing, may also order
incarceration. In the
event that the parties have not been before the court in the past, or
depending on the amount of money owed for the particular facts of the
case, a judge may issue an order/judgment that will resolve the issue. However, if there is a
significant amount of money owed for back child support or other
matters, or if a party has brought the other side in on numerous
occasions seeking compliance of a particular order, the court may
order a suspended sentence of perhaps seven to 30 days or more, or if
the matter is particularly egregious, may order that the party be
ordered to jail.
In the event that
a party is ordered immediately to jail, he or she will be removed
from the court room in handcuffs and leg shackles. Depending on the situation, a
judge will likely order a purge amount, that
is the amount of money that an individual must pay in order to be
released from custody.
These monies are paid at the court prior to the defendant
being released.
In the event that
the contempt relates to failure to pay child support and/or failure
to pay child support in a regular and consistent manner, a party may
consider using the Department of Revenue to collect the child support
as opposed to having the individual pay the child support directly to
the other parent.
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