You’ve successfully navigated the legal maze of getting a divorce or an allocation of parental responsibilities. You have, either by settlement or after a hearing, gotten orders from the Court detailing your rights and responsibilities. It should be over. But, the other party isn’t following the Court order. Maybe he hasn’t transferred the property he was supposed to. Maybe she hasn’t paid the bills that were allocated to her in the divorce. What do you do now? This is a situation the lawyers at Burnham Law see all the time. Family law cases drag on and on because one party won’t do what they are supposed to do. The longer you wait to deal with the situation, the harder and more frustrating it becomes to get the other person to comply. We can help.
Obviously you should try talking to the other party, to try and get a resolution outside of going back to Court. Often times, just engaging an attorney to negotiate on your behalf can be enough to get the other party moving towards compliance. But, when that fails you need to get the Court involved, and you do that through the process of contempt. Contempt occurs when a person willfully disobeys a court order. Court’s don’t regularly check in to see if their orders are being followed. It’s up to the parties to bring the issue to the Court’s attention, and to ask the Court to fix the situation. If your ex is refusing to comply with the Court’s orders, and talking isn’t working, it’s time to ask the Court to step in.
The first means of enforcing a court order is a contempt proceeding There are two types of contempt proceedings: remedial contempt, and punitive contempt. You have to prove different things for each type, and the actions the Court can take depend on the type of contempt proven.
Punitive contempt is exactly what it sounds like, it is punishment for failure to comply with a Court’s order. Punitive contempt is similar to a criminal proceeding in that the party accused of violating a court order has many of the same rights a criminal defendant does. To prove punitive contempt you must prove four things beyond a reasonable doubt (1) the existence of a lawful order of the court; (2) the contemnor’s knowledge of the order; (3) the contemnor’s ability to comply with the order; and (4) the contemnor’s willful refusal to comply with the order. If you successfully prove those things the Court can punish the contemnor by fine or imprisonment in the county jail.
Remedial contempt on the other hand, is civil in nature and exists to force a party to comply with an order or to do something they have the power to do. To prove remedial contempt you must prove three things, by a preponderance of the evidence: that the contemnor 1) did not comply with a lawful order of the court; (2) knew of the order; and (3) has the present ability to comply with the order. If you successfully prove those things the Court will order the contemnor to do something to “purge” the contempt, and may impose sanctions on him or her (such as a fine each day, or imprisonment) until such time as he or she complies. Additionally, in remedial contempt proceedings, the court can order that the contemnor pay your attorney’s fees incurred in bringing the contempt action. Obviously, if you can bring an action for remedial contempt it is best to do so in order to get the other party to pay your fees.
The second means of enforcing a court order is available to enforce the terms of a parenting time order, and that is a motion concerning parenting time disputes under C.R.S. 14-10-129.5. Under this type of motion all you need to prove is that the other party has not complied with the order violated the court orders. If you prove that the court can order a long list of possible remedies including: an order imposing additional terms and conditions that are consistent with the court’s previous order; an order modifying the previous order to meet the best interests of the child; an order requiring the violator to post bond or security to insure future compliance; an order requiring that makeup parenting time be provided for the aggrieved parent or child; and any other order that may promote the best interests of the child or children involved.
Enforcement proceedings are intricate and fact dependent and can be very difficult to prosecute. If you think you need to enforce an order against your ex, Burnham Law can help.