Motions to Contempt Vs Motions to Enforce: Distinctions During Divorce
In the ideal world, every divorce would be streamlined and amicable — and the aftermath would be equally easy. Parents would pay child support on time and be willing to divide their property equitably. Unfortunately, in the real world, divorces are often highly contentious, resulting in protracted litigation and months, even years of emotional disputes. While these issues can sometimes be avoided with strategic legal representation, there is still some element of uncertainty — a lot depends on the other side.
Unfortunately, such uncertainty is possible years later. Even after the divorce process has technically concluded, people are often surprised to discover that issues with their former spouses continue far into the future. Down the line, the other party may be reluctant to comply with various court orders. What seemed settled at the time of the divorce decree may once again be called into question.
When divorce complications arise, some people may be forced to seek solutions such as motions for contempt or motions to enforce. These motions hold a few noteworthy similarities but are also somewhat different in their approach and results. It’s understandable to be confused about them, as the terms are sometimes used interchangeably. The Florida Supreme Court, for example, provides a form that can be used to seek enforcement, but it’s known as Form 12.960: Motion for Civil Contempt/Enforcement.
To help, we’ve compiled a detailed guide that clarifies the concepts of contempt and enforcement. We’ll also offer insight into the many ways these motions can be used to improve divorce outcomes — or at least, to make the process a bit less stressful. You’ll come away feeling confident in your ability to seek remedies for ongoing divorce issues, especially if you receive guidance from a trusted family lawyer.
Motions for Contempt of Court
Those who fail to obey orders issued by judges may be held in contempt. Specifically, Florida laws define the concept of contempt as “Any act which is calculated to embarrass, hinder, or obstruct the court in the administration of justice, or which is calculated to lessen its authority or its dignity.” While many people think of contempt-based actions as specifically taking place within the courtroom setting, they also can occur after resolutions have been reached. If an act hinders the court’s ability to administer justice, it can be thought of as contempt regardless of where or how it occurs.
A common example involves parents who fail to pay child support, even though such orders were a central component of the previous divorce decree. If it’s clear that the person required to pay child support did not do so, that individual may ultimately be held in contempt.
First, however, the other party would need to file the appropriate motion and take part in a hearing. During that hearing, it must be established that the person thought to be in contempt was willful in his or her behavior. If it’s ultimately determined that the person is incapable of carrying out court orders, that person cannot, by definition, be found in contempt.
Motions to Enforce
Motions to enforce are strongly linked to court orders surrounding equitable distribution. Common examples involve divorce disputes about property division. Often, this is where the most complicated aspects of equitable distribution come into play. Examples might include ongoing disagreements about how to divide marital debt or what to do with the proceeds of a retirement account.
The concept of contempt may not necessarily apply in these situations, due to constitutional provisions about being wrongly punished or imprisoned due to the nonpayment of debts. Child support, however, is not regarded as a debt, so the idea of contempt remains relevant — and it can lead to significant penalties for the party found in contempt. If the concept of contempt is not applicable, however, separate steps will need to be taken to ensure that divorce orders are enforced.
The distinctions between contempt and enforcement can seem subtle, but they have huge implications. They may, for example, determine which actions can be taken against the non-compliant party. As such, it’s important to work with a knowledgeable family lawyer who understands these differences. Ideally, this representative will craft a strategic response that takes the specific considerations of contempt and enforcement into account.
Filing Motions for Contempt and Enforcement
If you decide that, based on your previous spouse’s unacceptable behavior, enforcement measures will be required, you’ll need to file the aforementioned document: Form 12.960: Motion for Civil Contempt/Enforcement. A representative such as a family lawyer can handle this procedure on your behalf. Once filed, this form could be personally served by a sheriff, hand-delivered to the recipient, or in some situations, mailed or emailed.
Form 12.960 provides ample opportunities to explain what has happened with the other party and why this behavior constitutes a willful failure to comply with court orders. Specific requests for relief can also be made at this time, although the judge may not always abide by these. Examples include:
- Writs of execution or garnishments for previous monetary judgments
- Compensatory or coercive fines for parties found in civil contempt
- Awards of make-up time-sharing with children
- Writs of bodily attachment for failure to appear at the hearing
- Requests for support payments to be automatically deducted from the other person’s wages
- Requirements for payments to be made via the central governmental depository
After the form has been served, a hearing will be set. As soon as the time and date of the hearing are established, you can move forward with Form 12.961: Notice of Hearing on Motion for Contempt/Enforcement. Keep in mind that, depending on the situation, your case may be heard by a child support enforcement hearing officer or by a general magistrate.
What to Expect During Contempt and Enforcement Hearings
During a contempt or enforcement hearing, it is the responsibility of the person making the motion (often referred to as the moving party) to demonstrate that the other person failed to obey a court order. This is where a proactive and assertive family lawyer will come into play. The ideal attorney can draw on a wealth of evidence to demonstrate that the court order has clearly not been obeyed — and that the moving party has suffered as a result.
If non-compliance is successfully established, the other person will have the opportunity to show that he or she was unable to comply with the court order in question. For example, if this person lost his or her job, non-compliance may not have been willful, but rather, the result of a complete loss of income. If a reasonable explanation for the non-compliant act is not available, the judge may then find the responsible party in contempt of court.
If someone is found in contempt, the judge will use sanctions to compel that individual to follow the previous court order. As we’ve outlined above, many forms of relief are permitted by law, with resolutions varying dramatically from one case to the next. The ultimate consequences imposed on the other party may include fines, attorney fee payments, suit money, or even jail.
Contempt and Enforcement Concerns: The Importance of Strong Legal Representation
Both motions for contempt and motions to enforce can be valuable tools during and after a divorce. Both should be undertaken with thorough guidance from a trusted legal professional. A skilled family lawyer can determine when these motions are a viable option and how they can be used in the context of divorce. With proper guidance, the effort to secure enforcement will feel a lot more straightforward and a lot less stressful.