If you have a family law matter in which the other party is violating a court order, it may be necessary to file a contempt complaint. Contempt is arguably the strongest way to enforce an order and compel the other spouse or parent to do what is required of them. A related matter is modification. In the event you are unable to comply with a court order and don’t want to risk contempt, you can ask the judge to modify the order. Modification is not guaranteed and the party requesting it must present compelling evidence to justify it.
Whether you are requesting or objecting to either a contempt or modification action, it’s essential to have seasoned legal counsel. SederLaw’s family law and probate attorneys have you covered.
The Basics of Family Law Contempt
When judges issue court orders, they expect both parties to comply with their terms. Unsurprisingly, however, this doesn’t always happen. Contempt can arise in any number of family law cases, including those in which the other party:
- Fails to pay court-ordered child support or alimony
- Violates the terms of a child custody or visitation order
- Disobeys an order of protection to prevent harassment or abuse
- Refuses to leave the marital residence as ordered
There are two types of contempt, civil and criminal:
Civil Contempt: The purpose of civil contempt is primarily to enforce a court order against the defendant for the benefit of the plaintiff. The parties can present evidence and arguments in court regarding the alleged failure to comply with the order. After hearing both sides, the judge may issue a monetary sanction against the contemnor (the party in contempt), including payment of the plaintiff’s legal fees. Although less common, a jail sentence of up to 30 days is also possible in a civil contempt action.
Criminal Contempt: Punishment is the main goal of a criminal contempt action, which means that jail time is a potential outcome. But as with civil contempt, the intended effect is also to compel compliance with the order. Defendants in criminal contempt actions enjoy the same rights as criminal defendants in general, such as the right to legal counsel. Most contempt actions will be civil in nature, but criminal contempt is always possible.
If you intend to pursue a contempt action, or one has been filed against you, retain a contempt attorney immediately to protect your rights.
What Must the Plaintiff Prove In a Contempt Complaint?
To prevail in a contempt action, the plaintiff and his or her contempt attorney must establish the following elements:
- The existence of a valid court order. Without an order, the plaintiff can’t prove contempt. The order must still be in force and not superseded by another one.
- The order’s terms must be clear and unambiguous. A possible defense is that the language used in the court order is vague. However, if it’s clear what the defendant’s obligations are, this argument probably won’t work.
- The defendant violated the order. The defendant’s failure to comply must be clear-cut and undisputed. If the defendant was not able to follow the order, this fact could serve as a defense.
Modifying a Court Order
A party that is unable to obey a court order is in jeopardy of having a contempt complaint filed against them. Perhaps the best way to avoid this is to ask the court for a modification. This is an important step if you find yourself struggling to abide by the judge’s requirements as spelled out in the order. The modification request can also clarify vague or ambiguous terms that might lead a party to inadvertently violate the order.
Not liking a court order or simply wanting different or more favorable terms – for instance, a lower child support payment – is not enough to support a request to modify. The party asking for the modification must show that there has been a material and substantial change in circumstances since the previous order was entered.
These are some examples of material and substantial changes that may justify modifying family court orders:
- A parent gets fired and is unable to pay child support
- One parent develops a drug addiction, potentially putting the child’s best interests at risk
- The child is older now and wants to spend more or less time with a parent
- An ex-spouse gets demoted, earns less, and can’t pay the full alimony amount
- The spouse receiving alimony gets remarried, which supports a request to terminate alimony
The party requesting the modification must generally present evidence and arguments to support the alleged change in circumstances. That individual will also submit a proposed modification to the court, laying out in detail exactly what sort of remedy is desired. If the matter in question involves children, the proposed modification must be in the child’s best interests.
The Modification Process
Before filing a complaint to modify, it’s a good idea to speak with the other party (or have your lawyer do so) to determine whether that individual will agree to modify. In many cases, especially where a parent or former spouse is represented by legal counsel, the parties can work together to modify the prior order. The process will be less complicated and time-consuming if you can convince the other party to consent to the modification.
But if the other parent or spouse contests the modification complaint, the court’s input will be needed. The parties will get a chance to present their arguments as to why the modification is or is not warranted. They can also argue for and against the proposed modification itself, for instance by showing that it would not be in the child’s best interests.
Contact Our Worcester Contempt and Modification Attorney
Having a skilled family law attorney is essential to making your best case for or against contempt or modification. At SederLaw, we understand the laws that govern contempt and modification actions and we are prepared to present the strongest possible case for the legal relief you are seeking. Give our Family Law & Probate team a call to get started today.
SederLaw helps clients with family law modifications in Worcester from their primary office as well as clients throughout MetroWest from their Westborough office.
