Sunday, May 3, 2009

Part I - Enforcing Your Divorce Decree

After a break from a Vista induced hard-drive crash, a trial and finally getting the murder charge wrapped up with a plea agreement to three years of probation, I have now returned. Today I am presenting to you the first in a series of ten postings about divorce decrees. These will all refer to post decree actions. Most of the information is of general applicability but is cited to Indiana law where appropriate.

Enforcing Your Divorce Decree

Enforcing a court order can be the most trying element of the divorce process, depending on how the parties feel about each other when it’s over. If you generally have a mutual understanding of cooperation then the first approach should be to directly contact your former spouse and explain the problem. If there is still disagreement then you can seek the use of a mediator who is knowledgeable in this area and can attempt to facilitate agreement among the parties based upon the application of the law.

If the post decree relationship is acrimonious then the enforcement action will likely be headed to court. The formal procedure for getting the court to hear your complaint of a party not complying with a court order is a Motion for Rule to Show Cause. This motion seeks to have the other party found in contempt of court. The party filing the contempt action must show that the opposing party failed to comply with a judgment or order of the court. For this reason it is always necessary to document all divorce decree related actions once the decree is issued.

You should be realistic in your expectations of adherence to the court's orders. If the opposing party lost a job, through no fault of his own, and did not have an income during the time of the missed child support payments, that does not make for a good contempt case. Resolution of this issue will depend on the circumstances surrounding the failure to comply with the decree and the party’s ability to explain the job loss. Likewise a parent who is late for visitation exchange may be technically violating the court's order but you must judge the degree to which it interferes. Bringing a contempt action without justifiable grounds can result in you having to pay opposing counsel's attorney fees and may also cause you to be viewed with disfavor by the judge.

Remember that under a contempt action, often you are asking the court to put the opposing party in jail for failure to comply with the decree. This may be necessary to show the offending party that the obligation must be met but you consider that you are asking to put the other person in jail? Certainly this action can diminish your relationship with your former spouse and also the children if you have any. As you weigh the seriousness of the contempt consider that you may be jailing your children's parent and causing an increase in hostility.

If you decide to go forward with a contempt action it is your responsibility to show that the other person violated a court order. It is likely that a hearing will be set for the matter. You will present your case first and may call witnesses and present documentation if needed. Then the opposing side may cross-examine your witnesses and present his own witnesses and documentation to refute your claims. I suggest that you use assistance in bringing this action. If you are the target of a contempt action then I strongly suggest that you get assistance. If you cannot afford an attorney and want one the court must appoint one to represent you if jail is to be considered an option.

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©2008, 2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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