RESISTANCE IS (USUALLY) FUTILE
CONTEMPT PROCEEDINGS IN DIVORCE AND PATERNITY CASES
Judgments and other court orders are enforced in a number of ways. The most common enforcement mechanism is a contempt action.
If, for example, part of your divorce judgment states that your ex-spouse was supposed to pay you one-half of the savings account within 30 days, and 30 days has gone by without payment, you can file a complaint for contempt with the court. The court will then give you a summons. You will then arrange for the summons and a copy of the complaint to be served on your ex-spouse at least ten days prior to the court date, called a return day, stated on the summons.
On the return day, assuming your ex shows up, the judge will be interested in two things. One, is the court order in question clear and unequivocal? Two, was that court order willfully disobeyed? If the answer to both questions is yes, your ex will be found in contempt. At this point the judge can do various things to enforce the order including sending your ex to jail.
Now let’s get into some of the details.
CONTEMPT ACTIONS RELATED TO CHILD SUPPORT
Something in Life is Free!
If you have a valid child support order that is not being paid,
In order to assist with child support collection, MassDOR/CSE requires a lot of information and has certain rules that must be followed. The best place to learn how they can help you is their website. http://www.mass.gov/?pageID=doragencylanding&L=4&L0=Home&L1=Individuals+and+Families&L2=Help+%26+Resources&L3=Child+Support+Enforcement&sid=Ador
On the Dark Side.
If, on the other hand, you are defending against a claim that you have disobeyed a child support order, you are on your own. Do not take such accusations lightly! Not paying court ordered child support can have very bad consequences.
§ DOR can seize your tax refunds;
§ DOR can seize you bank account(s);
§ DOR can revoke your driver’s license;
§ DOR can revoke your professional (doctor, lawyer, plumber, etc.) license;
§ DOR can take you to court and ask the judge to throw you in jail!
Also, child support, like student loans, can never be discharged in bankruptcy. There is no way to get out from under past due child support unless you have already served the person you are supposed to pay with a complaint for modification and you manage to convince the judge to reduce or eliminate the child support all the way back to that date of service.
Protection for the Payor.
If you paying child support, even if you are not behind, there are things you can do to protect yourself. First and foremost, never ever pay child support in cash! Always pay by check or money order and keep records of every single payment. Second, if the child support is being paid by payroll deduction, keep a copy of every single pay stub or statement that shows child support being paid. Third, for those who’s child support payments are being handled by Massachusetts DOR, either directly or through payroll deduction, go on line with DOR and arrange for online access to your child support account. This online account information can tell you if you are ahead, behind or current on your payments. Be sure to check this account periodically. If the numbers don’t add up, you can take action before DOR or the other side takes action.
If your judgment or court order calls on you to make other payments for the benefit of you child(ren), such as one-half of uninsured medical costs for the child(ren), make sure you keep records of what you paid, when you paid, what you were asked to pay, and when you were asked to pay. Also, paying for things for the kids, such as clothes, toys, and school supplies, instead of child support is a big mistake. Judges rarely give credit for such “payments in kind” and DOR will not recognize such actions as a substitute for ordered support payments. Feel free to give your kids whatever you want to give them, but, those gifts are not a substitute for child support payments. Also, if you lose your job, or something else happens that decreases your income, immediately file a complaint for modification and serve the summons and a copy of that complaint for modification on the other side as soon as possible. If the other side says you can pay less or not pay until you get back on your feet, do not believe it! Only a court can change these things. Every week that goes by without a complaint for modification filed and served is another child support payment that can never be undone!
Blood from a Stone.
The last line of defense in a contempt action for past due child support is the inability to pay. The judge cannot put you in jail if you really do not have the ability to pay. Of course, you should have filed, and served on the other side, a complaint for modification the moment you lost your ability to pay the existing child support order.
This is not a place you want to be. As far as the judges are concerned, inability to pay does not mean that paying the ordered support amount cuts too much into your blackjack budget or makes it difficult to make the payments on your new 55” flat screen. Inability to pay means that you cannot pay the rent, the heat, the grocery bill and you have already cut your expenses to the bone. Typically, something beyond your control, such as a layoff or disabling injury, will have to be proved to the judge before he or she will, on a temporary basis, let you get away without paying past due support. Even if you get this temporary relief, the judge might not reduce the support order and will probably order you to sell assets and/or engage in a job search that will be monitored by the probation department of the court.
CONTEMPT ACTIONS RELATED TO CUSTODY, VISITATION, OR PARENTING TIME
Don’t Mess with the Kids.
If you have decided to limit the other side’s contact with the child(ren) because he or she is behind on support, is behind on alimony, insulted you, disagreed about something you wanted to do with the child(ren), has a new boyfriend/girlfriend or just in general makes you crazy, get over it. You will fail and the judge will punish you.
Few things bring down the wrath of the court faster and more severely than interfering with the other parent’s time with the child(ren). The only exception to the above rule is a real threat to the safety of the child(ren) that you can clearly prove in court and did not exist when the original orders were made. Besides, if you became aware of a real threat to the safety of the children you would have kept them safe and immediately filed and served a complaint for modification and a motion for temporary orders addressing the safety concern, right? Good.
Don’t Be a Jerk.
Child custody, visitation, and parenting time work best when everyone is cooperative and considerate. If the kids are supposed to be home on Sunday at 4 PM have them home on Sunday at 4 PM. If something holds you up, call.
If the other side wants to trade a day to take the kids to a family reunion, do it. If the scout meeting or the softball game is going to delay your pick up of the kids by two hours, deal with it. Better yet, go to the game and cheer them on.
Using the sledge hammer of a contempt action as substitute reasonable accommodation, even if the “jerk” on the other side doesn’t always reciprocate, is a waste of time, money and stresses the kids. The judge will not be kind to anyone stressing the kids.
Be the Parents.
Custody, visitation, or parenting time are things decided by the court and the parents, not the kids. If a child does not want to go on a visit because he or she won’t be able to hang out with friends that day or there isn’t good internet access at the other home, that is too bad. If the parents give that control to the child(ren) everybody’s lives get harder. What the child(ren) want, especially as they become older, should be part of any changes in parenting time that both parents and/or the judge is or are considering for the future. However, “he or she didn’t want to go” will not save you from being held in contempt for not following the existing judgment or order.
CONTEMPT ACTIONS ABOUT PROPERTY AND DEBT
Don’t Promise What You Can’t Deliver.
The best way to avoid a contempt action for failing to obey property or debt division orders is to not agree to things you can’t afford to do. If you promise, as part of your separation or marital settlement agreement that is now a court judgment, to make all the payments on a certain credit card, make sure you can afford that obligation.
No Second Chances.
As discussed in more detail elsewhere in these materials, absent fraud, the property and debt division provision of a divorce judgment cannot be modified. Trying to convince the judge at the contempt hearing that the existing order is too hard or unfair will not work.
The only way out, and it is not an easy way, is filing for bankruptcy. The federal bankruptcy courts have the power, as part of a bankruptcy case, to end, or discharge as they say, property and debt division obligations arising out of a divorce. Such a discharge of obligations comes only as part of a full personal bankruptcy case. You cannot go to bankruptcy court just to escape particular obligations that you choose. It is an all or nothing process.
If you think you may fall into this category, please contact me to discuss that matter further. If it seems appropriate, I will refer you to a lawyer that does bankruptcy work.
As you may have already guessed, there is no property or debt division contempt action in paternity cases because, by definition, the parents were never married to each other. The fact of a marriage is what “unites” the property and debt of the now married couple. Part of the reason divorce actions exist is to “undo” the unification of the married couple’s property interests.
The information herein is a brief discussion in general terms of some of the more important concepts related to contempt actions. Outcomes in court in individual cases are dependent on the facts of each case, the strength of the evidence, the proper presentation of that evidence and the often changing state of the law. Those who use this information as a substitute for representation by an experienced attorney well versed in this area of law do so at their own risk.
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