Welcome back to the Oxendine Law podcast. Jared Oxendine and Christine Palmer here. And today we're going to be talking about contempt of court. What happens when your ex ignores the court order? Your divorce may be final, but that does not mean that every issue automatically disappears. What happens when your former spouse refuses to obey or stops obeying the court order? So today we're talking about contempt. We're talking about enforcement. We're talking about parenting time violations. We're talking about unpaid obligations and what you should do before the issues get worse. And so Christine, what I think people need to understand is there's a difference between finalizing your case and then actually enforcing the order. And so folks, what I mean by that is you have settled your divorce case either because you've reached a settlement agreement with your spouse that defines everybody's rights and obligations all the way from the custody and parenting time schedule to payment of child support, alimony, how retirement accounts are going to be divided, the sale of the home, etc. Or you've gone to court, you've had a trial, the judge issues an order. You think that's it. Now, sometimes that's when the important work begins, right? So now we got to make sure that your spouse actually does the things that they agreed to do or that they were ordered to do. So Christine, you're at that point and your ex is supposed to transfer $100,000 to you from their 401k within a certain amount of time and they don't do it. What can you do? >> All right. So I think first things first, when we're talking about contempt, let's define it. Because just because something that's in the order did not occur does not automatically make it contempt. Contempt is a willful refusal to abide by a court order. So you have to have either said, "I'm not going to do it." Or you just didn't read it and didn't try to do it. So if you you willfully or your spouse has willfully violated the order. They said, "I'm not doing what I'm supposed to do." With intent. There's intention behind it. Then they're in contempt. In the situation Jared just described, we look to why have they not transferred it? If it's, "Hey, I sent the email to HR. They told me the guy's on vacation. He's not going to be back for 2 weeks. Here's the proof. Right as soon as he gets back, they're going to start the transfer. The expected transfer date is on blah blah blah." That's not contempt. That's not a willful refusal to abide by the court order. They're doing everything in their power to do what they're supposed to do. Sometimes the universe gets in the way. If they said, "I don't care what no judge said. You're not getting my retirement." That's contempt. That right there. Or, they never reached out to HR. They just kind of stuck their head in the sand. Maybe they went on a vacation to celebrate, "I'm done. I'm single. I'm out of here." And they just failed to do something. An absolute failure is also contempt. So, it's a willful violation or just an absolute failure to act. Those are contemptuous. But, if they are really doing their best and trying their hardest and some act of God has gotten in the way, that is not contempt. So, sometimes you have to remember we work with people to try to solve a problem. But, there is a remedy if they're just absolutely not doing what they're supposed to do. >> Well, and speaking of willful, Christine makes a good point and this will help the person maybe that's defending the contempt. So, in other words, uh your ex has filed an action with the court saying he or she is not doing what you ordered them to do. You may have defenses and Christine kind of touched on that. So, let's talk about the example where maybe you're supposed to pay alimony payments to your ex and you through no fault of your own lose an amazing job that you had during the divorce making a lot of money. Through no fault of your own, the company downsized. There's layoffs. You have this job that you probably could never dream of getting again had it not been for the company you're working for. And so, you lose your job and then you spend months making good faith efforts to find a new job and either you don't find a job or the job that you get is paying you significantly less than what you were making and you get behind on your alimony payments. Does it mean that you don't still owe the money? >> Correct. >> But it does not mean that you are willfully in contempt, that you're willfully refusing to pay what you were ordered to pay because inability to pay is a defense to contempt in that circumstance. Again, doesn't mean you don't owe the money. The court's likely going to put together like a payment plan and say, "Okay, you need to pay a certain amount of dollars towards your obligation in terms of the arrears that you owe, but not necessarily find you in contempt, not put you in jail, not make you pay the other side attorney's fees if you're not willfully refusing to do what you're supposed to do." >> Right. We also, during the pendency of divorce cases, a lot of time have clients who complain about alleged violations of our standing orders. So, standing order, each county's is unique and each county's tells you sort of the rules to live by while this case is pending. And yes, they are court orders and yes, they are meant to sort of make people behave while the case is going on, but sometimes we have people who try to very strictly interpret them. Netflix got cut off. He's in contempt. This says that he is not to make any changes in utilities. Okay, well, Netflix is not a utility, right? Um so again, we're looking at was something a willful refusal, but it could have also been. Let's say there's plenty of money and it's always been there and out of sheer spite, he said, "I'm going to cut off Netflix. I'm going to cut off Hulu. I'm going to cut off all these streaming services. She's home alone with three kids. Good luck with that. Maybe I'll downgrade the internet to old school dial-up." You know, something along those There it's all about sort of the intent of how we got here or the person's explanation for why the thing didn't happen, whatever that it is. Transferring money, you know, changing a utility of some sort or, you know, sometimes health insurance changes. Like, Jared and I, a couple years ago, like our health insurance at the firm just changed. It doesn't mean that we didn't have it anymore, but we went from one provider to another. So, just because that happened, that wouldn't be a that's contempt. Took me off of United and put me on Blue Cross Blue Shield. This is contempt. I'm supposed to have the same insurance the whole time. That's not contempt. So, we're looking at intent always and a potential influence from the outside as to whether something qualifies as just a willful violation or just something that happens in life. >> Well, and I'd also say if you're the person thinking about filing for contempt, be careful about the technical violations. You kind of alluded to that. All right. What do I mean by that? Child support's due on the 1st you get on the 5th of every month. >> Right. >> Is it supposed to be there by the 1st of every month? Yes. Are they technically in violation of the order if they pay you on the 2nd, 3rd, 4th, or 5th? Yes. Does the court want to see you file a petition for contempt because your ex is paying your child support a few days late? >> he's always late. Not not just once a month. Okay, well then plan for it always coming on the 5th. >> Right. So, there's certain things that I would say even though they may be contempt, it doesn't mean you should actually file for contempt. And I think intent's important, but also the pattern of behavior, right? Because the natural thing when somebody doesn't do what they're supposed to do is to say, "Hey, will you please make sure going forward that you do what you're supposed to do?" I agree after a certain number of times it might be time to file for contempt. If it's constantly everything, you know, they're always late on child support, they're returning the children a day late for parenting time. Um you've asked them nicely for the past 6 months to go ahead and finish the refinance on the house to get your name off the debt and they still haven't done it. That's a different story, right? Now you've got multiple things, you've got a consistent long pattern of behavior here where they're just simply for whatever reason not doing what they're supposed to do. Then it makes sense to hold them accountable. >> Sure. >> But if it's just a technical violation and it's not really changing anything at the end of the day, it's not causing you any type of harm financially, you're not missing out on time with your kids, you know, the money's still coming to you every month even though it's a few days late. I would say you're actually wasting your time filing a contempt in that circumstance because the court's likely not going to hold him in contempt, and now you may have actually come out of dollars on attorney's fees or expensive litigation to file a contempt that really was not worth filing to begin with. >> Sure, and I caution clients all the time. Sometimes the worst thing you can do is file a contempt and lose because that person becomes so emboldened. They think the only It's sort of like what it you know, I don't have kids so I get to say this. When it comes to kids, what's worse? Spanking them or the threat of spanking them? Right? The threat of spanking a child is very powerful cuz the child doesn't know what it feels like. Sounds terrible. Oh my god, that I'll die. Like that would just be the worst thing ever. I there's no If that happened, it would be horrible. And then maybe one time they do get spanked, and it's like that wasn't even that bad. So you've lost your power, right? Sometimes the threat is stronger than the power. And it's sort of like that with the contempt sometimes. Like having the like if you don't, you're going to have to go to court, and then they're like, "Okay, never mind." and they do it is one thing. Saying, "If you don't, you're going to have to go to court." and you take you shoot your shot a little too soon, something that's not a solid contempt or something that the court doesn't find so frivolous that they are willing to consider it a violation of a court order. So you take them to court, and they're sitting there, and the judge is like, "Sorry, ma'am. I'm not going to find him in contempt for that." Well, now he knows he can do it for the rest of his life. He can get away with it. And he thinks to himself, "Well, if I can get away with that, I can probably get away with these two other things cuz we're going to go back in front of this judge, and the judge clearly has sided with me. Judge is on my side. The court agrees with me." So sometimes like if you're taking a a contempt to court, you want to know that there has been such an egregious violation that you are going to win. And those happen. I mean, Jared and I do those all the time. Like you'd be shocked how much people just really don't do what they're supposed to do. Um and those contempts are not not only necessary, some it's fun for us because you you do go in and you get such like immediate satisfaction, such great relief and your client is so happy with the results. I'm not saying these contempts don't exist, but just because something is a technical violation, sometimes you take that in there and the judge sides with the other side and now you've kind of given them some power they didn't have before. >> The other mistake I think people make is they respond to a contempt by also violating the order themselves. >> Yes. >> Which is also always a big no-no. And the example I'll give on that is, okay, so your ex was supposed to drop Johnny back off Sunday at 6:00 and instead of dropping Johnny off Sunday at 6:00, they got you Johnny Monday at 6:00. So you decide you're going to get your makeup time. And so when it's time for their next weekend, instead of giving them Johnny on the day they're supposed to get Johnny, you keep Johnny an extra day and you say, "Hey, we're square, we're even." You've now just violated the order as well and what you've done is no better than what they have done. And should you try to file a contempt under those circumstances, number one, the other side is not going to be in contempt because you've engaged in the same behavior. Frankly, I think the judge would find both of you in contempt. Now, that's just one example, there's a lot, but don't take matters into your own hands. Just because your ex is violating the court order does not give you permission to do so. And in fact, depending on what you do, you may lose your right to pursue other viable claims. >> Sure. >> And that modification is a big one. Well, that, but I mean and this is probably getting off a tangent, but let's say that you're in a situation, this is actually a good example, where you think that there is really good justified reasons for withholding parenting time. Maybe you suspect that um your ex is residing with somebody that's got a criminal record and you suspect they're abusing your children, okay? That's just one example. You naturally would think, well, I'm just not going to give them parenting time anymore. And you really can't do that. If it's that big of an emergency, you need to You the police, you need to call D-facts, and need immediately file a petition for modification and seek an emergency hearing. Why? Because if you just start to withhold the parenting time and then expect that you can go into court later and say, "Well, judge, no parent in their right mind would have put their child in that type of environment and that type of danger. And therefore, I want you to modify and take their time away." Guess what? The judge can't do that because the law says, "If you are illegally withholding parenting time, you can't maintain a case for modification." >> That's right. >> you've shot yourself in the foot. So, I think the bottom line there is do not retaliate and escalate by also violating the court order just because your ex has. Last thing I want to touch on before we move on from this topic, let's say you have a legitimate petition for contempt and you file it. Christine, what remedies can you expect from the court? >> Sure. So, the court has a very broad range, luckily, of ways that they can remedy a contempt. Um the most common is just to be made whole in whatever way that you were violated. So, if you weren't paid money, get that money paid. If parenting time was withheld from you, we're going to get that makeup time back. Um if the house was supposed to be refinanced so that your name is no longer on the indebtedness, we're going to force that so that your whether by a sale or whatever that your name is no longer on the indebtedness. So, the most common remedy is to be made whole. And I want people to understand that. This is not some sort of punitive lawsuit where you get pain and suffering or you get punitive damages. Now, you can, under certain circumstances, be reimbursed your attorney's fees. If you were required to get legal counsel to go make the situation right, then it is within the court's power to grant you your attorney's fees back. And if the person has violated in such an egregious way that further remedies need to occur, the courts can do things like even incarcerate the person. They can hold them until the contempt is purged. So, let's say it's just an egregious amount of child support that's owed, that person could be incarcerated until a purge amount is paid. Um same sort of thing if if someone's doing something as silly as just refusing to sign off on some documents, the court could say, "All right, well, you'll be in the holding cell till you sign them." So, that is something that is within the powers of the court. I wouldn't say it's common. Um and I also think that it should be very scarcely asked for because once again, the last thing you want to do is go into court and ask for something and the judge says, "No." And then that person's like, "Well, now you're you can't get me." Like they're empowered. So, make sure that your remedy matches the violation of whatever you're asking for. Um but do remember that under almost all circumstances, some sort of reimbursement of attorney's fees can be on the table. It has to travel under a statute, but there is an option to request attorney's fees back. So, if you need to seek Minor Derailment to try to get these things enforced, uh we'll talk to you about that in your consultation and see if it's something we believe you would viably be able to recover your expenses. >> If your ex is not obeying their part of the court order, do not assume you're stuck. You're not. And with offices in Suwanee and Athens, we certainly can meet with you and help you navigate your options and make sure that you take the proper steps to enforce your rights and make sure those obligations are met. If you enjoyed this podcast, make sure you subscribe. You'll be the first to hear about future podcasts. Until next time, we'll see you. Thank you. >> the court order. >> Make sure you follow the court order. Bye-bye.