WHAT TO DO IF THE OTHER SIDE IS NOT FOLLOWING THE JUDGES ORDERS
It may seem like getting an order for child support, child custody, alimony, or protection is the hardest part of bringing that relief. Honestly, it likely will be. But what happens if your spouse or ex-spouse fails to obey the order? After all, the order is simply a piece of paper—albeit one signed by a judge. In these instances, a party that is failing to obey a court order can be forced to do so using the court’s “contempt power.” You may be familiar with the idea of being “held in contempt” by a court, likely in the context of punishment for an inappropriate outburst or behavior in court; such events are often depicted in television dramas and movies. These types of contempt proceedings do occur and are referred to as “direct contempt.” In such matters, the judge witnesses the violation of the court's rules or orders and instantly punishes the offending party then and there. However, contempt for disobeying court orders follows a different process because such contempt actions are considered “indirect.” These indirect contempt proceedings are what are discussed below in the context of family law orders.
1. Make sure a Valid Order Exists
This first note may be better viewed as a prerequisite to the contempt process. The court order may be a divorce decree, issued after a trial before a judge or through a settlement. The order may also be a temporary order issued while a divorce is proceeding. Standard orders will dictate child support, child custody, alimony, and even restrictions on how close a spouse may come to the other spouse. If an order is issued improperly, such as a divorce decree issued without either spouse residing in Kansas, the court cannot validly enforce it. Assuming a valid order exists, the next step of the process is disobedience by the other spouse.
2. Make sure someone failed to obey the Order
Contempt next requires the spouse to disobey the court’s order. The most common example of this is failing to pay either child support or alimony. However, violating any order can constitute contempt of court. The spouse should have personal or otherwise reliable knowledge that the order is not being obeyed. This will generally be a simple assessment, since most divorce-related orders directly involve the other spouse.
3. Informing the Court of the Failure
Once a spouse is found to violate a court order, the next step is to inform the court. This is done via an ex parte hearing with the judge. An ex parte hearing means that the opposing side is not present. Instead, only the complaining spouse and his or her counsel will appear. This hearing serves two functions. First, it allows the judge to “weed out” unsupported complaints, such as when a party misunderstands what an order requires. Capable legal counsel will reduce the risk of this type of error. The second purpose of this ex parte hearing is to prevent spouses from using contempt proceedings to harass one another. The judge will use the hearing to determine whether the complaint has merit. After hearing the spouse's allegations at this ex parte hearing, the judge will make a decision. Generally, if sufficient claims of failure to obey exist, the court will set the matter for a full hearing with both parties. If the judge determines that there has not been sufficient evidence presented, the ex parte hearing will end the process, and the other spouse will not be held in contempt. The same is true if the complained-of behavior does not actually constitute disobedience.
4. Request a Hearing
After determining that a prima facie case of contempt exists, the court will hold a hearing to which both parties must attend. At this hearing, the party that participated in the ex parte hearing will put on evidence to demonstrate that the other spouse or ex-spouse violated the court order. The amount of evidence needed to succeed at this hearing will likely exceed that presented at the ex parte hearing. This is because the other spouse can challenge the validity of that evidence. The other spouse can also put on evidence of his or her own, demonstrating compliance with the court order. After hearing all the evidence, the judge will determine if the spouse should be held in contempt. It is important to note that, even though contempt can closely resemble criminal conduct, there is no right to a jury trial for a contempt of court hearing. This means that the judge will also be responsible for deciding who is telling the truth and what punishment is necessary.
5. Ask for Punishment
If the court finds a spouse in contempt, there will be a corresponding punishment. The punishment will depend on the nature of the violation. For example, failing to pay child support will generally result in the spouse being jailed until the amount is paid. Even outside of child support, fines and imprisonment are the main punishments the court can use in contempt cases. Section 20-1204a provides two additional punishments when the order violated is a child support order. First, for any professional license—such as a medical or law license—held by the party in contempt, the court can issue a formal notice to the licensing body regarding the contempt order. This will generally result in professional reprimands for the party, such as a suspension or disciplinary action. Second, if an individual falls six months or more behind in child support, the court may order that person’s driver’s license suspended until the amount is paid. Both of these statutory remedies are discretionary, meaning the judge can, but isn’t required to, impose them.
Enforcing court orders is essential for family law matters. When parties disobey court orders, divorce proceedings and divorce decrees fail to live up to their promises to the parties. If your spouse or ex-spouse is not following a court order, it is imperative that you contact legal counsel. This will ensure that the order is fully enforced as soon as possible.
If you need help from an experienced divorce and family law attorney in Johnson County, Kansas, feel free to contact the experienced attorneys at Roth Davies.