When the judge signs your divorce decree you and your ex must abide by the terms of the decree from that moment. If you or your ex does not comply with the terms you can be held in Constructive Contempt. Constructive Contempt is a type of contempt that is used to enforce the court’s order making the party perform an act that he or she has failed to do. Contempt is either civil contempt or criminal contempt and the court can either impose a fine, imprisonment, or both in any case. For civil contempt, the court will try to persuade your ex to abide by the order, for criminal, the court is invoking punishment for an act your ex may have completed that offended the court.
Once your ex has failed to comply with the divorce decree or custody order, you and your lawyer will need to make sure and do several things before the court will seek compliance from your ex.
Plead a proper contempt
You will want to make sure and properly plead to the court how your ex has violated the divorce decree or custody order. To do this, first you must list in the pleading the portion of the order that has been violated. For example, listing where in the order that your ex is supposed to pay child support. Then you will want to list how the ex has violated this order. Going back to the child support example, there you would list that a payment, in a specific amount, was due on a specific date and your ex failed to make this payment. Third, you and your lawyer will want to make sure and notify your ex of the contempt hearing. Your ex must be personally served, serving his or her attorney will not be sufficient. If you are pleading contempt for child support your ex must be served with a citation and show cause order, a citation must be given to support a money judgment. If your ex has violated an order by a criminal act that has offended the court then the punishment cannot exceed 6 months, if so, he or she will be entitled a jury trial.
Next, the pleading will need to be proven up before the court. To prove up the case, first you will be asked to identify your ex as the person whom who are filing contempt against. Second, you must ask the court to take notice of the order that you are trying to enforce. Third, you will have to prove, before the court, that your ex was given notice about which he or she is being filed for contempt against. Example: prove that your ex was aware that he or she was supposed to pay child support on a certain day but did not. Fourth, you and the lawyer will need to make sure and have a proposed order ready at the hearing, such as an order holding your ex in contempt and committing him to jail or based on certain conditions. Fifth, your ex will need to be read his rights and it must be put on the record.
What to do next if you have a successful contempt hearing:
There will need to be a punishment assessed for each act of contempt that you have won against your spouse. You and your lawyer will want to do this in case your ex is able to appeal one of the charges, assuming there are multiple. If he or she wins on appeal for one charge, he or she will still have to face the punishments for the other contempt charges.
The order for contempt must include how your ex can meet the requirements for the punishment that is given.
Can I file contempt against my ex for debts?
Under Article I Section 18 of Texas Constitution a person cannot be jailed for not paying a debt, except for: child support, spousal support, and attorney’s fees and costs incidental to the collection of a child support obligation. Failure to pay attorney’s fees can be enforced by contempt, if the fees or costs are being paid out of property or funds in your ex’s possession when the order was made.
Can I file contempt against my ex for not following a child possession order?
Yes, but only if you have strictly followed the order in your custody agreement. You must have attempted to get the child at the time, date, and location that are designated in your order and your ex must have refused to turn over the child to you. It will not be enough in court if your ex has only called and told you that you could not have the child.
What If my child refuses to visit me, according to the possession order?
This is known as passive contempt. Your ex, having primary possession, may claim that he or she had the child ready and packed, but the child refuses to go. If so, the courts have taken different views on this subject. Some courts refuse to acknowledge passive contempt and some hold the parent that has primary possession is in contempt. The Houston 14th Court of Appeals recognizes passive contempt, and has said that it is the obligation for the parent to drag the child to the visiting parent.