Contempt Of Court Family Law San Diego
What is contempt of court?
Contempt is a court proceeding which is instituted when there is an allegation that a party to a lawsuit—including divorce cases—has, with knowledge of a validly issued court order and the ability to comply with it, willfully failed to comply with the terms of the order. This type of proceeding is analogous to a criminal charge. The penalties the court may impose for a finding of contempt include jail time. Other common penalties are community service and fines. Contempt Of Court Family Law San Diego Serving Since 2001.
Can contempt of court get jail time?
Because there is the potential for jail time, a person charged with contempt has all the rights of a person charged with a criminal offense: the right to an attorney (appointed by the court for free, if the person cannot afford an attorney), the right to testify, the right not to testify, the right to present evidence, the right to confront and cross-examine witnesses, and potentially the right to a jury trial. Also, the charging party has the burden of proof and must prove the truth of the charge beyond a reasonable doubt. Further, if a person is prosecuted for a criminal violation, that same criminal violation cannot be the basis for a contempt charge because it would violate “double jeopardy.” Nor may a prosecutor bring a criminal case against a person who faced a contempt charge for the same conduct. And finally, if a person is found not guilty of committing contempt, the charging party may not appeal that ruling.
A person may be held in contempt for violating any court order, but in family law cases, the most common types of orders violated are: orders relating to payment of child support, spousal support, attorney’s fees, court ordered fees or other costs; orders prohibiting restraining a party from committing acts of domestic violence (Domestic Violence Restraining Orders); and orders regarding child custody and visitation.
What are common types of Contempt of Court in family law?
Any other order the court makes may be the subject of a contempt citation. Some examples are: failure to provide security (life insurance) for payment of child support; failure to comply with the terms of a marital settlement agreement; failure to relinquish property subject to a judgment of division of marital property (if merged into a judgment); failure to comply with an order to provide a further response to the requirement to complete the statutory declaration of disclosure.
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If a person is held in contempt, not only can the court impose the penalties discussed above, but the court can also order the person in contempt to pay the attorney’s fees and costs of the person pursuing the contempt action.
Although the court is generally prohibited by the U.S. Constitution from imprisoning a person for nonpayment of a debt, the court may impose punishment for failure to pay support. Such an order for support is not a debt under the meaning of that word in the Constitution; family law court orders are imposed according to the laws of California and do not constitute a “money judgment” as in a civil action for collection of debt. If a county has a right to reimbursement from a parent for payments made to the custodial parent, the failure to pay the county may subject the “debtor” to contempt using the same rationale.
Contempt of Court in family law- What if a person doesn’t have the ability to comply?
A person who does not have the ability to comply with an order cannot be found in contempt. However, a person who is unable to pay child supportbecause of the person willfully failing to seek and obtain employment commensurate with the ability and opportunity may be held in contempt. There is no requirement in the law for a person to obtain employment to pay spousal support, so a person may not be held in contempt if a person does not have the ability to pay that support.
The failure of a person to obey a court order which requires repeated acts to be performed over a period can subject the person to multiple counts of contempt. Thus, if a person fails to pay monthly child support for an entire year, he or she can face twelve counts of contempt.
How can a person defend against a charge of contempt? The first line of defense is to determine whether the contempt charge was properly brought. The order which is alleged to have been violated must have been a valid order. Orders may be “invalid” for any number of reasons. For example, the order underlying the contempt charge must be a written order signed by the judge or entered in detail in the court’s minutes. The reason for this is so that the order is clear, specific, and unequivocal, and therefore capable of being followed.
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Next, the party bringing the contempt charge must be able to prove that the alleged violator knew about the order. The pleadings must allege that either the cite (the person who violated the order) was present in court at the time the order was made, the cite was served with a copy of the order, the cite signed a stipulation upon which the order was based, or other facts which demonstrate that the party knew about the order. If there is insufficient evidence to prove that the party knew of the order, then the person cannot be held in contempt.
The charging party must describe with particularity how and when a person violated the order. If a party merely states that the other party doesn’t comply with child custody orders, then the pleadings may fail to provide even a prima facie case of contempt.
If a party is charging contempt for failing to pay an amount of money which was ordered by the court, that party generally does not need to allege that the violator can pay the money because the court found that the violator did have the ability when the order was made. Instead, if the alleged violator claims the inability to pay, that must be raised by the alleged violator and proved in what is known as an affirmative defense.Because of the variety of orders, a person can be alleged to have violated, the potential defenses to those violations is equally varied.
If you need a Contempt of Court Attorney in San Diego for a Free Consultation, you should seek the advice of a California State divorce attorney. The San Diego Divorce Attorney at the Law Office of Michael C. MacNeil have many years of divorce law experience and will competently represent your family law case. Please call for a no-cost divorce attorney consultation at (858) 922-7098. We look forward to helping you with any of your questions about contempt of Court in San Diego.
This blog post is not intended as legal advice and should be considered general information only about contempt of court and family law.