Civil Contempt In Family Law
Even after a court hearing or when the parties reach an agreement that is approved by the court, meaning it becomes an order or judgment of the court, sometimes a person will not follow the terms of the order or judgement. When this occurs, the mechanism used to bring the other side into compliance with the court’s order is a Complaint for Contempt.
Civil contempt complaints are used to enforce a number of issues in the Massachusetts family courts, including:
- Custody and Parenting
- Child Support, including late payments or not paying what was ordered
- Property Division
- Paying expenses, such as a mortgage
- Enforce a foreign decree
What a Plaintiff Must Prove for Contempt
In order to prove contempt, a plaintiff (person making the contempt complaint) must show three basic elements:
- There is a valid prior judgment or order;
- The defendant has knowledge of the judgment or order; and
- The defendant willfully disobeyed the judgment or order.
Civil vs. Criminal Contempt
Under the family law umbrella, most contempt complaints fall under the category of civil contempt. The main difference between civil and criminal contempt actions relates to the purpose or intent of the action. Whereas civil contempt has a remedial nature (we want you to do what you were supposed to do in the first place), criminal contempt is punitive in nature (you disobeyed the court and you are going to be punished).
Although civil contempt is more common with family law issues in Massachusetts, it is definitely possible to plead criminal contempt as well. In fact, both civil and criminal contempt may be brought forward to the court. Before disobedience to the court will reach the level of criminal contempt the defendant must clearly and intentionally have disobeyed the court’s order in circumstances in which he or she was able to obey it.
A simple example illustrating this distinction would be someone who lost his job and was unable to pay child support (civil contempt), opposed to someone who had the ability to pay child support but just decided not to (criminal contempt).
Go to Jail
Can you go to jail for a civil contempt, or only a criminal contempt? The distinction between civil and criminal contempt is not about jail, so someone could go to jail for a civil contempt finding, although it does not happen too often.
When it does occur, usually incarceration terminates when a required payment is made. Nothing like a little stay at the Iron Bar Hotel to get someone to comply with child support or other financial obligations.
If someone is found to be in civil contempt, he or she may not be sentenced to prison if the defendant shows he or she is unable to comply with the court’s directive.
Who Can Initiate a Complaint for Contempt?
In most instances, the person that benefited from the court’s order or judgment, usually through their lawyer, will initiate the contempt action by filing a complaint at the court. There are other parties that may start a contempt action in certain circumstances, including:
- A Guardian Ad Litem (appointed by the court) may bring a contempt action against a contemnor (defendant) for failure to obey orders and judgments involving the care, custody, or maintenance of minor children.
- Probation Officers of the Massachusetts Probate and Family Court may bring a civil and/or criminal contempt action in order to collect delinquent payments due any person resulting for a court order.
- The Department of Revenue – Child Support Enforcement Division (DOR/CSE) has many enforcement tools at their disposal, including the ability to file a contempt proceeding to compel compliance with a child support order.
Have You Been Charged with Contempt?
If you’re received a summons and a contempt complaint, you should contact an experienced domestic relations attorney right away. The timeline for contempt actions is compressed, and you and your attorney will need time to answer the complaint, prepare a defense and discuss strategy.
There are a number of defenses available to contempt actions, but it is better not to be in violation in the first place. If you are unable to comply with the court’s order, requesting a modification is a better option than being in contempt. If you are held to be in contempt, then it is likely you will also be ordered to pay for the other side’s legal fees.
Relief from the Court
The court has a number of options available after making a finding of civil or criminal contempt. Among the court’s powers are the ability to:
- Modify or terminate the original judgment
- Modify arrears (past amount owed that remains unpaid
- Order the defendant committed to jail
- Enter a money judgment to be paid
- Award attorney fees (may or may not be the full amount, and must be reasonable
- Order wages garnished or assigned
Do You Need Legal Help?
If you need help with a civil contempt, contact Next Phase Legal. We are experienced working with outside parties both inside and outside the courtroom.