WHAT TO DO IF THE “OTHER SIDE” IS NOT FOLLOWING THE JUDGE’S ORDERS
It may seem like getting an order for child support, child custody, alimony, or protection is the hardest part of getting 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 at court; such events are often played out 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 action which violates the rules or orders of the court and instantly punishes the violating party then and there. However, the type of contempt for disobeying court orders follows a different process, because such contempt actions are considered “indirect.” These indirect contempt proceedings are what is discussed below in the context of family law orders.
1. Valid Order Exists
This first note may better be viewed as a prerequisite for the contempt process. The court order may be a decree of divorce, resulting after a trial before a judge or from a settlement. The order may also be a temporary order issued while a divorce is proceeding. Common orders will dictate child support, child custody, alimony, or even restrictions on how close a spouse may come to the other. 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. Failure to Obey 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, disobeying any order can be grounds for 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 orders relating to a divorce directly involve the other spouse.
3. Informing the Court
Once a spouse is discovered to be in violation of a court order, the next step is informing the court. This is done via an ex parte hearing with the judge. An ex parte hearing simply 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” complaints that are unsupported, such as when a party is misunderstanding 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 ensure there is merit to the complaint. After hearing the allegations of the spouse at this ex parte hearing, the judge will make a decision. Generally, if sufficient allegations 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.
After determining that a prima facie case for contempt exists, the court will hold a hearing that both parties must attend. At this hearing, the party that attended 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 in this hearing will likely be greater than that presented at the ex parte hearing. This is because the other spouse will be able to attack that evidence’s validity. 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 actions, there is no right to a jury 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.
If the court finds the spouse to be in contempt, there will be a corresponding punishment for that spouse. 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 offers two additional punishments when the order violated is for child support. First, for any professional license—such as a medical license or law license—held by the party in contempt, the court can make a formal notice to the licensing body regarding the order of contempt. 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, issue these punishments.
Enforcing court orders is essential for family law matters. When parties disobey the court freely, divorce proceedings and divorce decree fail to live up to their promise to the parties. If your spouse or ex-spouse is not following a court order, it is very important that you contact legal counsel. This will ensure that the order is fully enforced as soon as possible.
If you need the help of an experienced divorce and family law attorney in Johnson County, Kansas, feel free to contact the experienced attorneys at Roth Davies.