In a typical divorce case, there are likely to be a number of court orders for a spouse to do or not do something. It is widely thought that if your former spouse doesn’t follow a court order to the letter, that spouse is in contempt of court so that all you have to do is make a motion in court and the judge will punish your ex – possibly with incarceration – and your ex will then instantly fully comply with the order to your satisfaction and all problems will be solved. Well…not quite.
In addition to the legal requirements that must be met to obtain a contempt finding, more about those in a minute, at the end of the day, a contempt proceeding may not be as fulfilling as you would hope. The purpose of a finding of contempt is to stop the violation of the court order and, where possible, compensate the person injured by the violation. But a violation cannot be undone and often there is no adequate compensation. What can be done to make up for one parent depriving the other of court-ordered holiday or birthday time or opportunity to attend a school event with a child? And the court’s contempt power cannot work to fix, undue, modify or rewrite a prior court order that no longer makes sense.
What if your ex is required to make a monthly credit card payment and for whatever reason – innocent or malicious – is constantly late. You now have to deal with the annoyance of collection calls and adverse credit reporting. But because the law doesn’t allow a judge to use the contempt power to punish even the malicious behavior, your former spouse may not feel compelled to change.
To establish contempt the offended spouse has to prove in court by clear and convincing evidence that the offender violated unambiguous terms of a court order. So, failure or refusal to abide by a side agreement, even a written one, cannot be contempt. This requirement that the court order be unambiguous highlights the importance of making sure your original order is clear and understandable, not just when written but years later.
The law recognizes that one shouldn’t be found in contempt for not doing something that cannot reasonably be done – like make a payment when the person doesn’t have the money because they’ve been ill, lost their job and gone through all savings. So, it is a defense to a contempt charge that the violation wasn’t willful or the fault of the person violating the order.
Contempt is a serious matter, both for the one seeking enforcement and the one who hasn’t obeyed the court order. Sometimes it is worthwhile to pursue a contempt proceeding and it may be the only good option. But there is no point getting involved in a contempt proceeding if the legal and other expenses, the time commitment, and emotional toll don’t justify the probable resulting benefit.
So, when considering a contempt proceeding, you should, in consultation with experienced legal counsel, make a cost-benefit evaluation and explore possible alternate approaches that might more effectively achieve the desired goal. If, on the other hand, you are the person accused of violating an order and facing a contempt proceeding, experienced legal counsel should assess the strength and weaknesses of the case and work with you to prepare an effective defense while at the same time investigating whether creating a negotiated solution is a realistic and beneficial option.