In most, if not all family law cases
, the finalization of the divorce/case does not mean that all matters
related to the case have concluded. Rather, the entry of a Court Order
finalizing the matter is only a Court decision (or approval of an agreement)
as to how all matters related to the case will be handled. Each Court
Order contains provisions which must then be enforced in order to effectuate
the decision. In many cases all provisions are carried out without issue.
However, in the event either party fails to comply with the terms of the
Court Order, mechanisms exist to gain an individual's compliance.
The Court can intervene after a party alleges noncompliance by the opposing party. Such an action can be initiated by filing a Motion for Rule to Show Cause
(commonly referred to as a "contempt" motion) notifying the
Court of the issue. If the Court finds that the actions of one of the
parties rises to the level of a contempt citation, a variety of penalties
exist to punish the past actions and encourage future compliance with
the Court Order. Parties would be well-advised to seek the advice of counsel
in determining how to best proceed with the enforcement of a Court Order
as the remedies vary based upon the issue presented as well as the nature
of the non-compliance itself.
Enforcement of Child Support. Pursuant to Indiana Law, there are potential civil and criminal penalties
for the nonpayment of child support; failure to make support payments
can have serious ramifications. If the prosecutor chooses to go forward
with criminal proceedings, the charges can rise to a Class C Felony, punishable
by 2-8 years in prison conceivably, for the nonpayment of support in excess
of a statutorily-defined amount. As the payee of a support order, you
may request the Court exercise its power to hold the child support payor
in contempt. This can result in a variety of potential orders, including
that the contemptor pay the other parent's attorney's fees for
any and all costs associated with maintaining or bringing the action;
order that the contemptor perform community service; issue a warrant for
the individual's arrest for failure appear to show cause for the nonpayment
of support; suspend the individual's driver's license; intercept
tax refunds to pay against past-due support; and attach interest to a
delinquent support balance. In exceptional cases, the Court can incarcerate
a non-payor of support; however, rarely are parties jailed when found
to be in civil contempt. Frequently, this is counter-productive as that
person stands to lose their employment and become further delinquent on
his/her child support payments.
Be aware, however, that the Court must consider whether the acts of the
non-payor are willful; if the circumstances under which this person is
not paying are beyond their control, the Court may not believe a contempt
citation is proper.
Enforcement of Real Estate / Property Issues. If an unpaid obligation remains from a divorce, in lieu of seeking remedies
as a contempt action, another option to explore would be to obtain a money
judgment against an opposing party and enforcing it through regular collections
proceedings. However, this change from divorce obligation to money judgment,
generally, removes the contempt aspects and simply turns the debt into
money with statutory interest and the ability to collect through wage
and bank garnishments. Obviously, when the terms of the decree are not
strictly financial, the option to convert to a money judgment is not appropriate.
For example, if the parties agree to refinance a mortgage into one party's
name and that person subsequently does not qualify for the same, the third
party (the creditor) cannot be ordered to comply with the Court Order.
Therefore, the remedy requested will likely be to modify the terms of
the Decree, and not to find the party in contempt. Additionally, issues
exist when a party is unable to sell a home within a set timeframe due
to the issues in the housing market, effectively frustrating the intentions
of the divorce decree but not through the fault of either party such that
a contempt award would be proper.
Self Help. One common (and tempting) misnomer is to withhold parenting time as a
response to a failure of the other parent to pay child support or that
one party may withhold child support due to the other parent's failure
to allow for regular parenting time. Such actions risk the wrath of the
Court – these are issues for which consultation with counsel is
imerpative. Before undertaking anything that a Court could deem violative,
all the risks associated with this must be considered. are inappropriate
and deemed "self help" by the Courts. It is imperative that
parties in family law cases understand that only the Court may enter sanctions
for a violation of Court Order. Further, one party retaliating against
the alleged contemptor will not likely bode well in front of the Judge.
Hollingsworth & Zivitz, P.C., our team has the experience, the understanding, and the compassion to
assist with your family law needs. If you have questions or concerns regarding
divorce, custody, support, or any other family law concerns contact our
firm at 317.DIVORCE or visit our website at