Atlanta Contempt Actions Attorneys
After going through a difficult and long family court process, the last thing you want is to have go back in front of the judge. A party’s non-compliance with a court order, however, could force you return to court. This can occur when someone violates a custody agreement, ignores the judicial division of property, or violates other judicial orders. Contempt actions essentially allow you to ask the court to compel someone’s compliance with a prior order.
If you suspect that a family court order is being violated, you should contact an attorney immediately. At Kessler & Solomiany, LLC, our experienced Atlanta contempt actions lawyers know how to analyze complex cases and determine when a party could be in contempt. Understanding what goes into the division of property can be a complicated task with laws that vary by jurisdiction. We also know how to present your case before a judge and advocate for the court’s enforcement of a prior judicial order regarding a custody arrangement, property, or other matters. Contact us at (404) 688-8810 or online for a consultation, and let us help you get the relief you deserve.
What if one of the parents violates the custody agreement?
Minor violations should be worked out between you and your ex-spouse. Perhaps you can turn to a counselor or mediator if it becomes a source of constant disagreement. However, when the situation becomes unbearable or when one parent violates the agreement in a major way, it may be necessary to return to court to enforce the agreement.
Most judges abhor petty visitation disputes. Remember, you can avoid litigation headaches later by preventing problems in the initial agreement. But if your efforts fail, you can ask the court to assist you.
When do you go to court over violations of the agreement?
You should bring a violation to the court’s attention only when it becomes worth it to pay a lawyer. Make sure you are above reproach in this matter. You do not want to accuse your ex-spouse of something if you are guilty of other serious breaches of the agreement.
Enforcement is a tough issue and you need to put as many mechanisms into the final agreement as possible to avoid this battle. A provision might state that no parent may deny visitation rights to the other without going through a counselor or mediation or he or she would incur some sort of financial penalty. The overall theme to this chapter is that people can agree on anything, as long as they agree. In daily life working together to raise children is imperative.
Sometimes it is necessary to go back to court to enforce the agreement with the power of a judge’s order. If one parent repeatedly disappears for weeks at a time and she is not there to take care of the child at her appointed time, it may be necessary to go back to court to enforce or even change the agreement. Or if Dad attempts to take the children to a new home and bar Mom from her visitation rights with the children, it may be necessary to go back to court to enforce the agreement. Cases like these can be difficult to try.
Division of Property: Who Gets What and Why?
If child custody is the most contentious issue in a divorce, then division of property often comes in a close second. This is the time in your divorce when the judge (via court order) or the parties (via settlement agreement) decide who will get, among other things: the house, cars, boat, dogs, computers, furniture, and everything else you and your spouse acquired during the marriage. Be aware that there are limitations to what can be divided depending on your jurisdiction. Nevertheless, every court will answer two preliminary questions: (1) What property is subject to division, (2) How much of that property should each spouse receive?
Before proceeding, it is important to note that like every other aspect of your divorce, you and your spouse have the full power and opportunity to enter into a mutual agreement stipulating how your property will be divided. As with every aspect of your divorce, you and your spouse are better positioned to divide your assets (and debts) because they are the accumulation of a lifetime together. Consequently, you will be better served by entering into a mutually agreeable settlement instead of resorting to a judge’s ruling after a day or so of trial.
What property is generally subject to division?
There are different divisions of property systems in the United States, including: equitable division, marital property, and community property. A majority of states use a hybrid “equitable/marital division of property” system in which property is only subject to division if it was acquired during the marriage, leaving the judge discretion to “equitably” (fairly) divide such property. Under this system, property that was brought into the marriage or received via gifts or inheritance is not subject to division unless it is comingled with marital property or the gift was intended to benefit both spouses at the time of transfer.
About nine states use what is commonly referred to as a “community property” system. Currently these states include: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Under a community property system, all property owned or acquired by either spouse during the marriage is subject to division. Like marital property states, gifts and property that were brought into the marriage that were not comingled remain the separate property and are not subject to division.
The major difference between the equitable/marital system and a community property system is that the judge does not have any discretion when it comes time to divide the marital assets. Once the judge decides what property is considered marital property, the estate will be divided equally (50/50), not equitably. Of course, as with all issues, you should rely on your lawyer’s advice in this area.
What factors will the judge use to “equitably divide” my marital estate?
If you do not live in one of the nine or so community property states, then the judge will have discretion regarding how the estate will be divided. The judge will consider what is equitable given the facts of your case. At the outset it should be noted that “equitable” division does not mean “equal” division.
The judge will consider numerous factors when he/she divvies up the martial estate and the order may “favor” one party over the other, meaning they receive more than 50 percent of estate. If you are in a community property state, “equity,” as the term is used in an equitable/marital property system, is not a factor because the estate will be statutorily divided 50/50.
The court will generally look at (1) the length of the marriage, (2) prenuptial or postnuptial agreements between the parties, (3) the age of the parties, (4) the health of each party, (5) occupation of each party, (6) other sources of income available to each party and employability, (7) the needs of each party, (8) the contributions of one spouse to the family unit as a homemaker and many other factors.
As you may have realized, the factors that influence alimony are similar to division of property. Family law is very intuitive. Consequently, the practical considerations listed above must be taken into account before an “equitable” division of property can be made.
Will infidelity affect my share of divided property?
Generally, adultery is not a significant factor when it comes time to divide the estate in an equitable division system and it is usually not considered in a community property system. You may remember, however, that in some states adultery is a bar to alimony or may affect property division. That being said, it is important to remember that in a majority of states the judge has discretion to decide what is “equitable.” Consequently, some judges may keep your (or your spouse’s) adultery in mind when dividing your marital estate. Nevertheless, if your state permits, your lawyer may argue—but not rely upon— adultery as a ground for receiving a greater or lesser portion of the marital estate.
What happens if one spouse is spending a lot of money prior to the divorce being final?
Although marital fault is becoming less of a factor for many judges, economic fault remains very important when it comes time to divide your assets. Dissipation is the legal term used to characterize an intentional or negligent misuse of marital funds after the breakdown of the marriage or for a non-marital purpose during the marriage. If one spouse has been dissipating marital funds the court may well offset the property division in favor of the other spouse to compensate for the money that would have been awarded but for the dissipation.
What other factors may the judge consider in court?
It is important to stress the intangible factors that a judge will consider. You should always be on your best behavior while in court and in the days and months leading up to court. If you are a man, wear a suit or a dress shirt, slacks, and a tie. If you are a woman, wear a dress, skirt, or a suit. Above all, do not be afraid to ask your attorney what he or she considers appropriate attire.
Additionally, avoid personal and emotionally charged attacks on your spouse and his counsel. Also, be aware of your body language while in front of a judge. Do not slouch in your chair or roll your eyes whenever the opposing attorney or your spouse makes a comment. A cool and collected litigant will often reap the rewards of his or her composure, especially in the face of an angry spouse. Always address the court and the judge with politeness and deference. Remember, judges are human and despite any other factors, they will look favorably on people that show respect for the court.
How will the court treat comingled property in marital property states?
You should be aware that separate property can become marital property, subject to division, but marital property usually cannot become separate property except in strict circumstances where the intent to give property to the other spouse is clear. This concept is known as “transmutation” or “comingling.” Stated differently, if you comingle separate property with marital property, then it becomes marital property subject to division.
Whether separate property has been comingled is often a very confusing and hotly contested issue during the division of property stage of divorce. Of course, this makes perfect sense because the person arguing against comingling wants to keep his or her property, while the person arguing that it is comingled property wants a bigger martial estate and thus a bigger cut.
Consider this example: Before your marriage you owned a home that you inherited from your parents, who inherited it from their parents, and so on. After your wedding, your husband moved into the home and began making needed repairs to the now 100-year-old home. Over the next thirty years you and your husband added two additional rooms to make room for your two children and you used marital funds for maintenance and necessary repairs. Will the court consider this separate property since the home has been in your family for 100 years and you brought it into the marriage? Or will it be considered marital property subject to equitable division? The answer is uncertain.
What effect does a pre-nuptial agreement have on division of property?
Generally, an enforceable prenuptial or postnuptial agreement will override the division of property system in your jurisdiction. It is important to reiterate that a prenuptial or postnuptial agreement (1) must not be unconscionable, (2) there must be full financial disclosure between both parties, and (3) it must be voluntary. Remember, state laws vary, so you should rely on the advice of your attorney. If your prenuptial or postnuptial agreement is legally enforceable then you can stipulate your own terms for property division.
For example, if you live in an equitable division of property state, your prenuptial agreement may stipulate that all marital assets will be divided equally (50/50). This effectively takes the discretion out of the hands of the judge. Conversely, if you live in a community property state, your prenuptial agreement may state that one spouse shall receive more or less than the other spouse at divorce. Again, despite the default rules in your jurisdiction to the contrary, you may agree to modify or override those rules.
What about items other than property, like items that were purchased together on a honeymoon? How are those divided?
We all have numerous items of property. Lawyers and judges hate to divide the minor things like pots and pans. You and your spouse should divide these. If you can, think of any easy way to do it such as a coin toss or a garage sale. Or get a relative to help you both. The money you would spend on lawyers to divide these items is not worth it.
Other items of property that you might not think of as property might include patents, intellectual property, files including information, photographs, and anything that is not a “fixture.” You may also want to decide who receives certain bank accounts based on who has the better relationship with the bank and have the other person start banking elsewhere to make things cleaner.
The best suggestion is to start immediately making a list of every single piece of property, perhaps doing it in spreadsheet form. You might put next to it why you believe it is yours or your spouses’, with another column with the approximate value, and another column with whom you think should receive it. These things need to be ironed out and it is certainly not worth the cost to have lawyers or judges help you divide minor issues of property that you and your spouse should be able to do yourselves.
How is custody of pets usually decided?
Pets are considered property. They are not children and the court is not vested with the authority to award visitation with a pet (although there are anecdotes of judges doing so). The rules of division of property apply equally to furniture and pets. If a pet was purchased before the marriage, it is premarital. Otherwise, the court will have to decide to whom to award the pet. Please try your best to avoid leaving such a decision to a judge. You know your pets best and you really know whom they would be better off with.
What problems might I encounter with executing the court-ordered division of property and other issues?
The judge has ruled on every issue in your case including custody of your children, alimony, and division of property. Now what should you do? Hopefully, your settlement agreement and/or the court order give you specific guidelines to follow.
For example, you may be required to “sell the marital property and split the proceeds 50/50.” Of course, this seems simple enough—but is it? Consider what steps you must take to sell the property and what problems may arise. For starters you need to hire a real estate agent—but what if you husband does not want to hire your real estate agent, he wants his own? What if you want to sell the house for $500,000 but your husband thinks the house is worth $600,000—who gets the final say as to what the listing price will be? After the house is sold, how soon after must you pay your ex-spouse his or her 50 percent? How will you pay it?
The procedure for separating your assets can be long and tedious and often leads to verbal and physical confrontations. As a result, your attorney must make provisions in your settlement agreement (if you have one) or request that the court provide for every contingency after your divorce. If you can account for every procedural problem that may arise after your divorce, then you will be better prepared to resolve these issues at that time. Many of these provisions can be found in form books such as the Georgia Library of Family Law Forms, available at books.dailyreportonline.com/family-law/, which provides forms for divorces in Georgia. This forms book is intended for lawyers to use, but it may help give you an idea of what actions or motions are available to you and your lawyer.
Where property division is concerned, you and your former spouse will need to be aware that a court order requiring you and your ex-spouse to divvy up your property can be quite contentious and often devolves into arguments over procedure. There may also be difficulties enforcing the support and visitation arrangements, but once you have a divorce decree setting forth those obligations and rights, enforcement is much easier. Contempt of court or the threat of contempt will often resolve these issues.
At Kessler & Solomiany, LLC, our experienced attorneys know how to advocate for compliance with court order. If you or a loved one is considering a contempt action, you deserve skilled representation. Contact us for a consultation at (404) 688-8810 or online today.
Ditzel on Contempt
Kessler on Paternity and Legitimation – ICLE Savanna 2007
Kessler on Legitimation?
Contempt/Enforcement of Orders FAQs
- What is Contempt?
- What are the defenses to Contempt?
- What are Contempt cases usually about in family law?
- What happens if the Court finds that someone is in Contempt?
- Can the Court punish someone for Contempt?
- Is Contempt the only way to enforce a Court Order?
- How long does a Contempt case take?
- What if I am falsely accused of Contempt?
- How do I prevent being falsely accused?
- Is it worth filing for Contempt?
- Do I need a lawyer if I am accused of Contempt?
- Does the same judge who heard the original case also hear the Contempt case?
What is Contempt?
Contempt means the willful violation of a Court Order.
What are the defenses to Contempt?
Either that you did not violate the Court Order, or that the violation was not willful.
What are Contempt cases usually about in family law?
They are usually about failure to comply with an Order requiring support payments (either alimony or child support). They can also be about the failure to follow Orders relating to custody or visitation.
What happens if the Court finds that someone is in Contempt?
The offender can be ordered to cooperate or face incarceration The Court can even order incarceration until cooperation begins. This may mean payment of all or part of the support owed, or cooperation on terms of custody or visitation. The Court can also require the offender to pay the other side’s attorney’s fees.
Can the Court punish someone for Contempt?
Yes. The Court can not only take steps to ensure cooperation, it can also hold someone in criminal Contempt and punish them by making them pay a fine and/or serve up to twenty days in jail for each violation, as punishment (even if they decide to cooperate or pay all owed monies).
Is Contempt the only way to enforce a Court Order?
For the collection of arrears (past due support), there are other methods for collection such as garnishment of bank accounts, wages and other assets. Property of the payor can also be attached.
How long does a Contempt case take?
Typically Contempt cases are quicker than divorce or other family law cases since they focus on one or two straightforward issues (was there a violation of an Order and what should the Court do about it).
What if I am falsely accused of Contempt?
If the Court believes you have been falsely accused, the Court may order the opposing party to pay your lawyer’s fees.
How do I prevent being falsely accused?
Keep good records and receipts. Bring witnesses to visitation exchanges.
Is it worth filing for Contempt?
It depends on how important it is to you that the other side abide by the Court Order. You should not rely on the other side being ordered to pay your fees. This way, you can decide if it is worth it to you to pay a lawyer (or try yourself) to file a Contempt.
Do I need a lawyer if I am accused of Contempt?
It is almost always better to have a lawyer, especially when you stand a chance of going to jail or being ordered to pay money. You should at least consult with a knowledgeable attorney to determine your risks. Visit our homepage to learn more about our experience and expertise in all family law matters.
Does the same judge who heard the original case also hear the Contempt case?
Usually the same judge who dealt with the case which resulted in the Order now possibly being violated will handle the Contempt case. Some exceptions exist for instance, when both parties move and a Court in another state is asked to enforce the Order. Or when a modification is being held in a new county in Georgia and the person filing the Contempt asks to have a Contempt handled in that new county in Georgia in conjunction with the modification.