Both parties are obligated by law to comply with the contents of a divorce order. When one party does not follow the law, and fails to comply with the divorce order, the family court must be called upon to engage in deeper involvement and enforce that order. It is not acceptable to simply fail to pay child support obligations.
There are certain issues that can be enforced by contempt in your divorce agreement or divorce order and certain issues that cannot. Contempt means that a person has the ability to do what they are ordered to do, but that they are willfully non-compliant. Contempt orders can carry the threat of incarceration. Because incarceration is an extreme remedy, courts use this remedy sparingly. Contempt does not apply to equitable distribution issues. For example, if your spouse is required to list and sell the marital residence in accordance with a divorce agreement, and he or she refuses to contact the realtor you have agreed to and refuses to list the house, you cannot have that portion the divorce agreement enforced by contempt. Selling the house is an equitable distribution issue, and can only be enforced without the remedy of contempt.
Contemptible issues include failure to pay child support or child related expenses, failure to pay alimony, and failure to pay attorney’s fees and costs. For example, if your spouse is ordered to pay you child support in the amount of $1,000.00, per month and after several months, your spouse unilaterally begins paying you $800.00 and says he or she cannot afford $1,000.00 in child support, you may be able to enforce by contempt. The presumption is that your spouse has the ability to pay the ordered child support amount. Your spouse would need to rebut that presumption in a contempt hearing by presenting evidence the proves he or she really does not have the ability to pay the ordered child support amount. If, however, he or she cannot rebut the presumption because nothing has changed, then you can ask the court for contempt.
So, what does that mean? That means the court must determine that your spouse has the ability to pay the ordered amount, has willfully failed to pay and can order a purge amount to be paid. The purge amount to be paid is typically the outstanding balance and is usually due within a few days of the contempt hearing. If your former spouse fails to make the purge payment by the date ordered by the court, then the court will hold a hearing to determine why your former spouse should not be incarcerated for failure to make the purge payment. If after that hearing, your former spouse still has no good reason for failing to pay and has not paid, the court can enter an order for writ for arrest. The court may also at that hearing call a bailiff and have your former spouse arrested at that hearing, though this is very uncommon. The writ is provided to the local sheriff’s office for service and the sheriff is responsible for arresting your former spouse and incarcerating him or her for 179 days, or until the purge payment is made, whichever occurs first.
The trick with contempt is that in order to enforce by contempt, you must prove that your former spouse has the ability to comply with the court order, or that he or she “holds the keys to the jail cell”, so to speak. If an unexpected health expense comes up for your former spouse and he or she does not pay child support because of it, the court cannot enforce by contempt. The court can enforce the order, and may award attorney’s fees and costs to you, but your former spouse cannot be held in contempt. If, however, your former spouse spent all of his or her money on cosmetic surgery, and failed to pay child support as a result of that expenditure, your former spouse can be held in contempt because cosmetic surgery is not a necessity or a health emergency.
Enforcement does not carry the incarceration hammer. Courts can enforce divorce agreements and as a penalty for failing to comply, can require the non-compliant spouse to pay attorney’s fees and costs incurred by the compliant spouse for having to enforce the divorce agreement. Examples of other issues that are enforceable but not by contempt are splitting of financial or retirement accounts, transferring title to vehicles and vessels, selling or transferring title to real property, and return or exchange of jewelry, art and other items of personal property.