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Family Law Contempt-Missing One Support Payment Can Land You In Jail

posted by DNA Identifiers @ 11:14 AM
Wednesday, September 30, 2009

By Cherie Brenner

The courts do not take non payment of child or spousal support to a former wife or husband lightly. If your former mate decides to file contempt charges, there is a chance you could go to jail.

A person found in contempt of a court order is called a ” contemnor “.

To prove contempt, the person or government entity filing the charges must prove four elements:
Existence of a lawful valid court order
Contemnor’s knowledge of the court order
Contemnor’s ability to comply with the order
Contemnor’s failure to comply
Sounds simple?  It can be.

A contempt is either civil or criminal:

Criminal Contempt is used if the purpose of the contempt proceeding is to “punish” for offensive conduct against the court, its judgment, orders or processes and is charges by the government as a misdemeanor or felony.

Civil Contempt is used if the purpose of the contempt proceeding is “remedial or coercive“ although jail can be used as a form of coercion. Civil contempt is usually used to preserve and enforce rights of private parties to the suit (the former spouse) to compel obedience to orders made for the benefit of a party. However, it can’t be used to compel payment of a debt not considered support.

Does the contemnor have “Due Process Protections”?:

Civil contempt’s are called “quasi-criminal”. If the contempt proceedings are criminal in nature then the U.S. Constitution guarantees the due process safeguards. This includes the right to counsel, the right to remain silent, proof beyond a reasonable doubt and double jeopardy. The right to a jury trial under the Sixth Amendment only applies to criminal contempt’s when charged as a misdemeanor or a felony. A civil contempt holds a maximum of five days in jail for each count.  What is the procedure in litigating a civil contempt?  The moving party files the motion set for an OSC hearing.  The contemnor must be notified.

Personal service is required:

Notice must be at least 21 calendar days before the hearing.  Motion and notice must specify acts claimed to be contemptuous.  The time and place of the hearing must be noted. At the hearing, the court must inform the contemnor of the charges.  The person filing the charges has the burden of proof The contemnor may answer the charge or may move to dismiss without answering. What are Some the “Common Defenses “? Failure to comply was not willful, due to lack of ability to comply.

Request a discharge, due to technical problems with the filing:
1. Same charges were already discharged on its merits
2. Expired or invalid court order
3. Moving party didn’t prove beyond a reasonable doubt
Under the Calif. Civil Code of Procedure section 1218, it states in part “the court shall order community service and/or imprisonment. The contemnor will be ordered to pay fees as well.
Keep in mind that each non payment can be charged as a separate contempt and each count proven may be aggregated. In addition to the above, attorney fees and costs may be added.

Remember, if you are having money problems you can always go back to court to modify an order. The bases for a modification is a change of circumstances.  It is quite understandable that in these tough financial times, being able to comply with support ordered may just be an impossible burden

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