Have you won your case, only to find that the other side is refusing to obey the court order?
If so, consider bringing a contempt petition. You should think through whether the other party is failing to follow the court order just because he or she does not want to comply with it, or because he or she is unable to comply with it. Try to figure out how much effort the other party has made to do what the court order requires. In order to succeed on a contempt petition you will need to show that the other party could comply with the court order if he or she made a genuine effort to do so.
Alternatively, is there a court order in place that you are not following?
Prepare for the possibility that you will need to defend yourself against a contempt petition.
The serious potential consequences that can flow from a contempt petition make it important to consult with knowledgeable counsel regarding the situation. Georgia Lord has extensive experience and expertise regarding contempt petitions and can bring contempt petitions on your behalf, defend you against a contempt petition, or consult with you regarding how best to approach the situation.
Once a contempt petition is filed, a hearing is set to give the party served with the contempt petition (that is, the “respondent-in-contempt”) a chance to tell his or her side of the story.
At the hearing, the questions that the Judge may consider are:
- Is there an enforceable order in place?
- If so, what does it provide? Are the terms of the order clear and unambiguous?
- Did the respondent-in-contempt fail to comply with one or more provisions of the order?
- If so, how much effort did the respondent-in-contempt make to comply with the order? Were there other efforts the respondent-in-contempt could have taken? Or is the respondent-in-contempt genuinely unable to comply?
- If the respondent-in-contempt has willfully failed to comply with an enforceable court order, what remedy is appropriate?
If the court finds the respondent-in-contempt failed to make sufficient efforts to comply with a court order, the judge has broad discretion to take additional steps to try and persuade the respondent-in-contempt to come into compliance. Contempt remedies can include:
- Punishments, such as fines in a set amount or incarceration for a set period of time;
- Warnings to the offending party to get into compliance;
- Incarceration of the respondent-in-contempt until he or she comes into compliance: the respondent-in-contempt may be taken straight from the courtroom into a jail cell;
- Suspension of a government-issued license;
- Establishment of a compliance plan to give the respondent-in-contempt another opportunity to catch up on his or her obligation; and/or,
- Requirement that the respondent-in-contempt reimburse the petitioner-in-contempt for the attorney fees and expenses incurred in bringing the contempt petition.
The Judge entered an order telling me to do a bunch of stuff, but his decision was wrong. Now that I understand the process better I want to come back and present more evidence. If my ex brings a contempt petition against me, will I be able to present my new evidence at the contempt hearing?
Probably not. In general, during a contempt hearing the court will not allow the parties to argue or present evidence about whether the terms of the order should be changed. If the language of the order is unclear the Judge may be able to clarify it. You may want to consider filing a motion for new trial or a motion for reconsideration, and then asking the court to hear your motion at the same time it hears the contempt petition.
I had a contempt petition served on my ex, but she says that she does not have to follow the court’s order because she has filed an appeal. Is this true?
It depends. In some circumstances the legal principle of supersedeas can prevent the winning party from enforcing an order while an appeal or certain types of post-trial motions are pending. There are additional rules that are unique to family law cases. Often a temporary order may control the parties’ actions while they await further review of the final order. An attorney familiar with these principles can help you determine whether your order is enforceable through a contempt petition and, if it is not, may find other ways for you to get the relief you need despite the pending appeal.
Why is it called a “contempt petition”?
Once a court enters an order each of the parties must take every action within his or her power to comply with that court order: any failure to make one’s best efforts to comply with a court order is deemed to reflect a lack of respect (i.e., “contempt”) for the court.
My ex’s attorney mailed me a contempt petition and something labelled a “Rule Nisi” that says a hearing date has been set. Shouldn’t these be served by a Deputy rather than by mail? Can I delay things by showing up at the hearing but asking at that time for more time to retain counsel?
A contempt petition must usually be served by a Deputy or other authorized process server but there are exceptions to this rule and it would be unwise to assume that the service made upon you was inadequate. A Rule Nisi (pronounced NI si, with two long i’s) orders the recipient to appear and show cause why the relief requested by the filing party should not be granted. It would also be unwise to assume that you will be able to get a postponement of the hearing as many courts are very reluctant to grant such postponements. Contempt petitions are often heard on a more expedited basis than are divorces or modification actions and it is therefore important to begin working to prepare your response (preferably with the help of capable counsel) just as soon as you learn about the petition.
Are there any ways other than a contempt petition to collect past due child support?
Yes, there may be, depending on the situation. An Income Withholding Order can sometimes be used to siphon money directly from a party’s wages or benefits and send it to the party entitled to support. A garnishment action can be used to collect funds from the wages, bank accounts, or other assets of the party that has been ordered to pay support. The Georgia DHS Division of Child Support Services may also be able to help.
Are there any steps I can take to protect myself against a contempt action?
No system is foolproof, but there are steps you can take to discourage false contempt claims:
- Follow the court order. Stay familiar with any court orders that are in effect and try your best to follow them.
- Put any departure from the order’s terms in writing. If you and the other party agree to do something in a different way than that provided in the court order you should, at a minimum, get a written statement from the other party acknowledging that this departure from the order’s terms was done by mutual agreement.
- Keep payment records. Keep records showing the payments you have made. Obtain receipts for payments and spell out in them precisely what the payment is intended to cover. Consider having payment funneled through your employer (via an Income Withholding Order) or through the government Child Support Services, so that there will be a third-party record of payments made.
- Keep other records reflecting compliance. When it can be done in a reasonable way, keep records showing that you complied with other terms of the court order. For instance, phone records may provide evidence that you allowed a child to call the other parent on the schedule set out in the order, and email correspondence may show that you attempted to discuss the selection of extra-curricular activities. As a general rule, though, avoid over-using police officers to document violations: save requests for police intervention for situations that are genuine potential emergencies.
- Don’t over-extend yourself financially. Carefully consider the financial obligations created by any existing court orders before committing yourself to any significant additional expenses. Do not take on any obligation that endangers your ability to meet current, court-ordered support payments. It is particularly unwise to take on expenses that may seem excessive in light of your circumstances. For instance, an expensive car lease, a new home, or anything else that may seem too extravagant for your income will undermine any argument that you cannot afford to pay court-ordered support. Be cautious about bringing more children into the world with a new partner, as you will still be required to support your children from a prior relationship.
- Seek help from counsel. Seek help from knowledgeable counsel as soon as you learn that a contempt action is being brought or threatened and work with your counsel to assemble evidence against the claim. If the court rejects the other party’s contempt claim it may order that party to pay the legal fees you incurred in defending yourself.