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Contempt Penalties: One way to Deal with an Ex Spouse who does not Pay his/her Support Obligation

Divorce proceedings are tough. They take time, cost money and are emotionally taxing on everyone involved. The same goes for child custody and support proceedings. Once they are finished, the parties have court orders in place to govern their future conduct.

All too often, however, one of the litigants may fail to comply with the orders after they are issued. Sometimes the non-compliant litigant is simply unable to comply due to exigent circumstances. More often, though, the non-compliant litigant simply does not like the court order and decides to ignore it. Under these circumstances, what can be done to force the offending litigant to comply? One option available is to seek an order from the court that the offending litigant is in contempt and should face sanctions for his/her conduct.

This article will provide a brief explanation as to what civil contempt is, potential penalties, and how to go about seeking it. You should not consider this article a “do-it-yourself” guide. Just the opposite, we recommend you retain an attorney if you choose to pursue an order for contempt. This article will not address criminal contempt proceedings in great detail.

What is Contempt?
A party may be subject to contempt proceedings and penalties if: 1) he/she is subject to a valid court order; 2) he/she has knowledge of the order and the ability to comply with it; and 3) he/she fails to comply with the terms of the order. As an enforcement remedy, exercise of the contempt power enables the court to compel compliance with its valid orders.

A contempt is civil, or remedial, in nature if the contemnor is ordered imprisoned only until he or she performs an act ordered by the court. This is sometimes referred to as a “conditional sentence” or “determinate sentence with a purge clause.” Contempt is also civil in nature where the contemnor is ordered to pay a compensatory fine to the other party, or the court, unless he or she performs an act required by the court’s order. This is also referred to as a “conditional fine.” As one court put it, unlike criminal contempt, civil contemnors “hold the key to the jail cell in their own pocket, and can secure their release at any time by following the court’s order.”

What Family Law Orders are Enforceable by Contempt?

Family law orders and judgments are enforceable by contempt unless punishment by contempt would violate the constitutional guaranty against imprisonment for nonpayment of debts. An order or judgment is not a debt within the meaning of the constitutional guaranty, however, simply because it requires the payment of money. Indeed, most (but not all) family law orders and judgments are deemed to be based on law-imposed obligations as opposed to money judgments in civil actions for debts. As such, they are enforceable by the court’s contempt power. The following is a list of common family law orders which are enforceable by contempt: 1) Child, spousal and family support orders; 2) Orders made during child or family support proceedings requiring a parent to participate in job training, vocational rehabilitation, and work placement programs; 3) Earnings assignment orders; 4) Child custody and visitation orders; 5) Attorney fee/costs orders; 6) Community property division orders; and 7) Family Code protective orders and restraining orders.

Initiating Contempt Proceedings

Contempt proceedings are commenced by filing a charging affidavit. Based on the affidavit, the court will then issue and sign an order to show cause directing the alleged contemnor to appear and be heard on the charge at a specified date and time. California requires that people use the following forms to initiate contempt proceedings:

  1. For all contempt proceedings, the charging party must use form FL-410 (Order to Show Cause and Affidavit for Contempt), which can be found at this link: http://www.courts.ca.gov/documents/fl410.pdf.

  2. For contempt cases involving financial and injunctive orders, the charging party must use form FL-411 (Affidavit of Facts Constituting Contempt – Financial and Injunctive Orders), which can be found at this link: http://www.courts.ca.gov/documents/fl411.pdf.

  3. For contempt cases involving domestic violence and/or custody and visitation issues, the charging party must use form FL-412 (Affidavit of Facts Constituting Contempt – Domestic Violence / Custody and Visitation), which can be found at this link: http://www.courts.ca.gov/documents/fl412.pdf.

Again, we do not recommend that you initiate contempt proceedings without the assistance of an attorney. There are specific elements a charging party must prove to establish contempt. Likewise, there are many defenses which may or may not apply to a given case. To prepare for all of this, you should speak with a family law attorney who can assess what evidence is necessary and how best to present that to the court.

Contempt Penalties

Judgments or orders made or entered under the Family Code are enforceable by the family court by “execution, the appointment of a receiver, or contempt, or by any other order as the court in its discretion determines from time to time to be necessary.” For contempt proceedings, the following penalties apply:

  • Upon a first finding of contempt, the contemnor must be ordered to perform community service of up to 120 hours or be imprisoned up to 120 hours (five days) for each count of contempt. With respect to support payments, each month in which there was a default may be alleged as a separate count of contempt. As such, if a contemnor defaults on three months of support payments, he/she could face up to 15 days of prison.

  • Upon a second finding of contempt, the contemnor must be ordered to perform up to 120 hours of community service, in addition to imprisonment of up to 120 hours (5 days) for each act of contempt.

  • Upon a third or any subsequent finding of contempt, the contemnor must be imprisoned for up to 240 hours (10 days) and be ordered to perform up to 240 hours of community service for each count of contempt.

Regarding community service, the contemnor must be ordered to pay an administrative fee which does not exceed the actual cost of his/her administration and supervision while assigned to a community service program.

Notwithstanding the aforementioned guidelines on imprisonment, when the contempt consists of a failure to perform an act still within the contemnor’s power to perform, the contemnor may be imprisoned until performance. This is commonly referred to as a “conditional imprisonment” or “determinate sentence with a purge clause.” 

In addition to prison or community service penalties, a party found to be in contempt may also be ordered to pay the charging party’s reasonable attorney fees and costs incurred in connection with the contempt proceeding.

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