In the process of finalizing a divorce, the court enters a Final Judgment which outlines the terms of the divorce, including the rights, obligations and responsibilities of each spouse with regard to asset and debt division, spousal support, child support and more. If the divorce was concluded through the parties’ agreement, the Final Judgment approves the agreement and makes it a part of the Final Judgment. In many states, like Florida, if children are involved, the court will require a parenting plan which contains all the details regarding time-sharing, parental responsibility (decision making) and more. If the divorce was resolved through a settlement agreement, the parenting plan often is made a part of the settlement agreement.
The Final Judgment, Parenting Plan and any settlement agreement which may exist are legally binding upon the parties. Unfortunately, far too often, one spouse will violate the terms of the Agreement or Parenting Plan, which is a violation of the Final Judgment. If that happens, the other spouse does have legal options to remedy the situation.
Civil Contempt vs. Criminal Contempt
There are two types of contempt of court. Criminal contempt occurs when someone disobeys, offends or disrespects the authority of the court itself during the proceedings. The primary purpose of finding an individual in criminal contempt is to punish. Criminal contempt is either direct or indirect. Civil contempt occurs when someone violates the resulting orders of the court, as in the case of a Final Judgment of Dissolution of Marriage or Final Judgment of Paternity. The purpose of finding an individual in civil contempt is to force them into complying with the Court’s directives.
- Direct criminal contempt — A person may be found in direct criminal contempt when they insult or frustrate the authority of the Court, in the presence of the judge in court. For example, a Court may instruct a spouse during a hearing that the other spouse's previous relationships have no impact on the child custody issue being heard by the Court. Despite the Court’s instruction, the spouse continues to bring up the other spouse’s past relationships.
- Indirect criminal contempt — A person may be found in indirect criminal contempt when a spouse fails to comply with the court's order outside the presence of the court, again insulting or frustrating the authority of the Court. For example, the Court may instruct a spouse not to directly contact the other spouse but to go through that spouse’s attorney. Despite the instruction, the spouse continues to directly contact the other spouse.
- Civil contempt — A person may be found in civil contempt If a spouse willfully fails to comply with the terms of a Final Judgment or Court Order. The goal in finding someone in civil contempt is to force their future compliance with the Court’s Orders.
Enforcing criminal contempt originates from the Court. In the case of indirect contempt, the judge may charge an individual with indirect criminal contempt after the individual has been made aware of the requirements of the Court’s Order (such as when your attorney explains the Order to you). While the Court may call the individual into Court to testify, once the Judge initiates criminal contempt proceedings, the court will take most of the action necessary to pursue the criminal contempt.
Civil contempt proceedings must be initiated by the wronged spouse, typically through his or her attorney. The burden of bringing evidence to the Court which is sufficient to establish civil contempt is the burden of the plaintiff (or Petitioner, in a domestic relations case), not a criminal prosecutor.
There are established guidelines for proving criminal and civil contempt. Even if it would benefit you to have your spouse found in criminal contempt, you have little control over proving criminal contempt, aside from making the court aware of the facts supporting indirect contempt or providing your testimony, if you are called to do so. That burden of proof belongs to the prosecutor.
To prove civil contempt, a few things have to happen. First, the court has to determine that the terms of the order or Final Judgment were clear and not subject to differing interpretations. Ambiguities may favor the defendant (or Respondent) because an individual cannot comply with a court order if the individual does not understand the terms or if those terms are subject to interpretation.
If the court determines the terms were clear, it also will examine whether the individual could have complied but did not — whether the non-compliance was willful. If a spouse is required to return the children by a certain time on a certain day after an extended summer visit and fails to do so because his or her flight is cancelled or delayed, the court will examine whether reasonable alternatives were available. Note the use of the word “reasonable” – a term which is the subject of a great deal of litigation.
If it is determined that a spouse was capable of complying with the terms of the Court Order and did not, there is a likelihood they will be found in contempt. The party accused of being in contempt will have the opportunity to present his or her side of the case, as will the accuser. It is not necessary to prove civil contempt beyond a reasonable doubt, as is the case in a criminal proceeding.
Penalties for Contempt
Contempt has very serious legal consequences for the individual who is found to be in contempt. Whether criminal or civil and depending on the circumstances of each case, the penalties may include:
- Wage garnishment
- Compensatory (“make up”) time with children
- Modification of the Final Judgment, Order or custody arrangement
- Attorney's fees
- Other sanctions, in the Court’s discretion
Unlike criminal contempt, civil contempt
generally requires that the offending spouse correct the wrongdoing and upon
doing so, may not be required to face the entire penalty. For example, if a spouse is found in contempt
for willfully failing to pay child support, the Court also may issue a Writ of
Bodily Attachment, requiring the spouse to be incarcerated. The Writ will include a “purge” – an amount
set by the Court which, when paid, allows the spouse to be released from jail. This
is because the purpose of civil contempt is to encourage or coerce the
individual into complying with the Court’s Order or Final Judgment, whereas the
purpose of criminal contempt is punishment.
Filing a Motion for Contempt/Enforcement
If your spouse isn't complying with the terms of your Final Judgment or other Court Order, in most cases, you must take steps to file a motion for contempt. The motion must be verified or “sworn” and must meet other requirements set forth by Florida statutes. Your spouse should be served according to the Florida Family Law Rules of Procedure and a hearing date must be set, with the offending spouse receiving Notice which contains certain terms specific to contempt actions. The involvement of your lawyer makes this process less intimidating and should help to ensure that errors are not made which jeopardize your claims.
If you live in the Kissimmee, Florida, area and you believe your spouse is in contempt of a divorce final judgment or other order, call the experienced divorce lawyers at Draper Law Offices at 866.767.4711 for a free, no-obligation consultation.
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