After a dissolution of marriage or paternity action, it is not uncommon for there to be issues with enforcement. There are certain requirements for contempt and/or enforcement:
- The alleged contemnor must be served with a copy of the motion that is being filed with the court and be given reasonable notice of hearing.
- The motion for contempt should attach a copy of the Order or Final Judgment that applies to the situation at hand so that the Court can confirm the obligation exists.
- If you are seeking reimbursement for expenses related to a child, be sure to attach receipts, as well as evidence you complied with your shared parenting communication requirements before incurring the expense.
- DO NOT ask to modify the Order or Final Judgment – that is a different cause of action.
Support Violations
When a party does not pay what they are required to under either a Temporary Order or Final Judgment, the aggrieved party must file a motion for enforcement or contempt; otherwise, the Court will not know that the issue has occurred.
If the financial obligation is support related (such as child support, alimony, or attorney’s fees) the defaulting party may be subject to incarceration if you can show the Court the other party is able to pay from their own resources but is willfully refusing to do so. Equitable distribution is not, in and of itself, punishable by contempt, but there are alternative means by which to be sure the obligations are met.
Even if the Obligor is not found to have acted on purpose, there is still likely to be an enforcement order, and the Court will determine how the missed payment/action should be handled going forward.
Time-Sharing Violations
If you have a co-parent who is not following the terms of your Parenting Plan, and that parenting plan was otherwise ratified by either a Court Order or Final Judgment, you will need to file a Motion for Contempt and/or Enforcement to seek remedy for the offense.
A parent’s refusal to permit time-sharing without proper cause can result in makeup time-sharing, the payment of costs associated with filing an enforcement motion (including attorney fees) and/or an order the offending parent attend a parenting class or complete community service.
A parent cannot refuse to allow time-sharing simply because an obligor parent is behind with support payments. Moreover, a child’s preference about the time-sharing schedule will not necessarily provide defense to non-compliance, unless the Court decides otherwise after a best interest hearing.
If time has been missed, then the typical remedy is make up time – provided it is in the best interest of the child. It may not turn out to be a day for day missed schedule, and frankly that depends upon a variety of potential factors, including how long the offended parent sat on their complaint (i.e. how many days they allowed to accrue) and/or what the child’s daily life and needs require – and if the makeup parent can meet those obligations.
What about when a parent fails to exercise the schedule? In that case, there is no means by which to force them to take the time to which they are entitled; however, you do have the option of suing for a recalculation of child support to adjust the schedule to match reality, retroactive to the date when that parent first stopped using the schedule. This, it is noted, is very common in 50/50 schedules where a parent might have pushed for an equal schedule get a discount on the child support obligation but had no intention of actually using the time.
Co-parenting complaints, on the other hand (i.e. shared parenting conflicts, communication issues, travel or exchange violations, etc.) do not give rise to a specific contempt remedy. However, a motion for non-compliance with a specific co-parenting act would be actionable and is a way to present shared parenting complaints to the court.
Finally, in situations where a parent is seeking financial reimbursement for uncovered medical or extracurricular expenses related to the child, be mindful that the parent seeking reimbursement themselves must have: a) appropriately followed shared parenting; and b) appropriately requested reimbursement as described in the terms of the Parenting Plan. If they did not, they may otherwise be precluded by the Court from seeking those reimbursements (note, however, that this does not generally apply to medically necessary or emergency health care situations).
Enforcement Methods
As a sanction for the offense of contempt, the Court can consider a variety of remedies, depending upon the situation. This potentially can include:
- Entering an order requiring a lump sum payment to “purge” the contempt and thus have the “keys to the jail cell” to avoid incarceration as a sanction (Note: this must be premised upon current ability to pay);
- Entering an initial or amended Income Deduction Order (IDO) and companion Income Withholding Order (IWO) or other form of wage garnishment, so that installment payments of both the ongoing and arrears installment payments of the support at issue are processed directly from the Obligor’s paycheck;
- Enter an order entitling the past due balance to accrue statutory interest retroactive to the date of the Final Judgment;
- Enter a Writ of Bodily attachment (only allowed under certain circumstances);
- Suspending the right of the Obligor to claim the tax deduction for children if delinquent in support;
- Suspending the Obligor’s driver’s license, passport, or other discretionary privileges;
- Order the offending party to attend a parenting class or engage in community service (if a time-sharing violation);
- Order the offending party to surrender reasonable make up time to the other parent (if found to be in the best interest of the child);
- Order the offending party to perform whatever act was directed in equitable distribution (i.e. signing a deed, listing a home for sale, etc.); and/or
- Order the offending party to pay attorney fees and costs to the party who had to file the motion.
Whether you are the party seeking enforcement or the one who is alleged to be in offense, we can assist you to make sure the Court has the necessary information to order the appropriate relief.
Questions about Contempt and/or Enforcement? Call us at 407-403-5990 or contact us (below) to schedule your appointment.