Episode 53 – What to do if Your Ex Isn’t Following a Court Order or Separation Agreement

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Attorney writing on a legal document with a client in the background. | New Direction Family Law

Ex-It Strategy
Podcast Episode 53


Elizabeth Stephenson, Sarah Hink

Elizabeth: Hi. I’m Elizabeth Stephenson with New Direction Family Law. 

Sarah: And I’m Sarah Hink, her law partner and podcast partner in crime. And sometimes drinking partner. We are here today to discuss with you what happens if you violate a court order? What’s the remedy for that?

Elizabeth: Oh, there’s lots of remedies and it’s up to the judge to decide what that remedy might be. 

Sarah: So you know, a lot of times we go to court. We get a temporary custody order or temporary child support order. And then what? So they stopped following it. They, you know, show up late for an exchange, and that happens a couple of times, or they decide they want to keep the child and they don’t even exchange the child with you. And then there’s times where people aren’t paying their bills. Like they’re supposed to, aren’t paying your child support – all sorts of ways that people violate court orders. 

Elizabeth: If you don’t do what a judge says, they are not necessarily happy about that. So that’s why we – on the first note – why we like to settle because you have a say in what you will or will not do in some respects. But sometimes, you know, we’ll go to court and the judge will render his decision or send it to us in an email, and it’s like, you send it to the client and it’s like, “well, I want two, I don’t want week on, week off. I want two weeks on/weeks off. Can we do that?” I’m like, no! Once you go to court and a judge gives you an order it’s an order that you must follow.

Sarah: Exactly. And unfortunately, a lot of people think that “oh, well, he’s late to the exchange. I’m gonna call the police and they’ll go get my kid.” 

Elizabeth: Probably not. Because they don’t want to get involved in all that.

Sarah: No. So a lot of people think that they can get law enforcement involved a lot of times with these custody orders.

Elizabeth: Right. Even if you have a custody order that says I’m supposed to have my child at 3:15 today, a lot of times officers will say – no offense to them they’ve got a lot going on – it’s a domestic matter. I’m not going to get involved in this. So, so what’s a remedy Sarah?

Sarah: That’s when you call your attorney, and say, “Okay, well, he is constantly late to the exchanges or, you know, I didn’t get him the kids this past weekend. What can I do?” And your attorney’s gonna say, “Well, we will, maybe firsthand, try to reach out to the other attorney (if there is one) and see if we can somehow solve this without going to court.” But If that is a dead end road and that’s not going to happen, then you file what we call a Motion for Order to Show Cause and Motion for Contempt and ask the court to hold them in contempt for violating the order. 

Elizabeth: Right. And so the court has a wide range of repercussions that can happen to you. And there are two types of contempt and even attorneys get a little confused about it. 

Sarah: And judges, I think judges are the most confused. 

Elizabeth: Yeah, because there’s civil contempt and there’s criminal contempt, but even civil contempt – If the judge finds you’re in contempt can send you to jail until you do what you’re supposed to do.

Sarah: Yes.

Elizabeth: And if you don’t, then you stay in jail until you do.

Sarah: So criminal contempt is looked at as a punishment. Like I want you to comply with my order, and because you have not, and I want you to know, keep trying to comply with it after the fact, but I’m going to punish you for failing to do that and you’re going to go to jail.

Elizabeth: Right. Or it’s like, a lot of times criminal contempt is something that you cannot purge. Like if you missed 10 visitations, you can’t go back and make up those visitations per se. So what they’re going to say is you’re going to go sit in jail for at least 30 days and you’re going to pay a fine. And then when you get out, we may modify that. The judge can modify your custody order too on their own while you’re there for contempt. 

Sarah: And then for a lot of times, the support payments, the first few times, it’s going to be a purge as you said before. You can, ya know, make that right. You can pay back that $5,000 you owe. 

Elizabeth: Right.

Sarah: So that can be the form of civil contempt when, okay, you need to pay this and then purge yourself of the contempt, and then you’re good to go. There might be attorney’s fees you have to pay on top of that. 

Elizabeth: Right. If you’re found a contempt, I think the statute is “you shall,” and even if you purge yourself, you could, ya know, you might still have to pay the attorney’s fees, but a lot of times you’ll be at the end of the hearing, you know, and you’re set with your client and the judge goes “You know, deputies take them into custody,” and I’ve yet to see someone, you know, the jail is right across the street from us, and I’ve never seen someone not come up with $5, $10, $15,000 by the time they get to the other side of the street. Which is shocking to me.

Sarah: Yes! And the judges know that too. There’s a lot of people who are just very defiant of court orders, and they don’t think anything’s going to happen to them. 

Elizabeth: Right. And the rule is, especially if you’re, you know, ya got this narcissist sort of thing going on that “I’m always right and you can’t tell me what to do”, and unfortunately, or fortunately if it’s is your client, a lot of times, the first time, they won’t send you to jail. 

Sarah: Right. It does feel like you can get away with anything. They’re going to give you a little slap on the wrist. Maybe admonish you, and like, you know, say, “Don’t do this again. You better straighten up.”

Elizabeth: Right. So it’s a little, I mean, I’ve had clients be held in contempt, and it’s not fun. It’s like, just follow the order. You know, if you don’t, if you want to change it, we can talk about changing it and modifying it, but you don’t mess around with the judge’s order.

Sarah: Right. They get a little cranky. And there has to be an order in place – speaking of – we keep using the word order. So, you know, in some of my cases, I wait months for a court order. So, even though everyone heard what the judge said, there’s no order signed and in the court file, and people are still going off doing whatever they want.

Elizabeth: Right.

Sarah: And that can be very frustrating cause there’s nothing that us attorneys can do at that point.

Elizabeth: Right. And then, you know, you also have, like you said, at the beginning, “Oh, they were 15 minutes late.” And you get a call from a client saying “I want to file contempt charges right now!” 

Sarah: Yeah. Like “Got to jail.”

Elizabeth: Let’s talk about that because that’s probably not going to be enough for contempt. 

Sarah: Yeah. And That’s where it comes to listening to your attorney because through all this at the very front of it, you’re paying your attorney to file another motion. You’re paying your attorney to go to court. So there’s those upfront costs like if the other person’s found in contempt, they may owe your attorney’s fees back, but there are upfront costs to this.

Elizabeth: Right.

Sarah: And you want to make sure that you’re taking a good case to court to be heard.

Elizabeth: And the other thing is if you’re subject to jail time, there are whole lots of protections for the defendant or the contemptor, so it may be three months before you get to court. It could be longer than that. You can go and get continued and then things keep happening. So you may have to keep filing, you know, contempt motions, because all you can be – say you get there in December and your motion only has things through August, that’s all they can be held in contempt on. So it can get expensive at the end of the day. So you want to make sure that it’s worth it to do that.

Sarah: Yeah, and the judge will get to know you as well as the filer of these motions. So If you are a person who maybe has filed too often and over little things like we were speaking of before – like one time being 15 minutes late, you know, a day late on a child support payment – the judge is going to remember the folks who file and abuse this system of coming to court in hopes of maybe the other person would get in trouble, go to jail, what have you. So you do want to be careful how often you do it and make sure you, like we said, we bring a good case to the court.

Elizabeth: Right. And, you know, the judge on his own sees you come into court a lot may appoint a parent coordinator because now they see this as a high conflict case.

Sarah: So If someone has filed a complaint against or a motion against you, and they want to hold you in contempt, then you’re going to get served with an order to appear and show cause, and that will have a couple of court dates on it. Typically, if you’re in Wake county, they go ahead and give you two court dates and the first one is for your appearance. So what does that court date all about? 

Elizabeth: It’s about the judge, sort of like what you see on TV and they may say, “You have a right to hire your own attorney, or you can have one appointed for you.” And contempt, even though it’s a family law issue, you can have an attorney appointed to you where the state picks up the cost on that, but it’s income based. 

Sarah: Yes. 

Elizabeth: So you just go and the judge says “Pick and choose. Do you want one appointed? Do you want to represent yourself? Do you want an attorney?” That’s all that first appearance is about.

Sarah: You are advised of your rights. And so that’s 15 minutes, maybe. The person who filed the motion doesn’t even need to be there that day. And then the next court day will be the actual, unless it’s continued, the actual hearing on the contempt charges. 

Elizabeth: Right. And it’s sort of backwards. And we always tell you, we say to clients, “Let’s file the show cause.” Well, that sounds weird. What does that mean? It means that the person that you’re filing against has to come into court and it’s his or her burden to show cause why they should not be held in contempt. 

Sarah: Right. 

Elizabeth: So you don’t even have to, you know, you may not even testify, but the other person’s going to testify. You know, and if it’s criminal it’s beyond reasonable doubt, but if it’s civil, it’s just, they got to get a little over and they may or may not be held in contempt.

Sarah: Yeah. Yeah. I see judges get so mad at these things though, and rightly so. They put in a court order what’s supposed to happen if someone is violating and not following the order they put in place, they’re going to be mad. They do send people to jail. 

Elizabeth: They do! I mean, I don’t know that they don’t hesitate, but they don’t…

Sarah: Some days it doesn’t seem like it. 

Elizabeth: And sometimes they’ll double up and say, well, if this keeps happening, let’s go ahead and file a motion to modify. So then the court’s going to hear all that while they’re modifying an order. So that goes, that could hurt you too, in a modification – if you’re the one not following the order. 

Sarah: Yeah. It’s not like I love sending people to jail, but when it’s warranted that they’re going to, then they all of a sudden are in the courtroom and they hear like, “Okay, deputy’s yeah, he’s going to go to jail right now.” And then like, they start crying. And they never think it’s going to happen. And then they also get put on probation for a year. And like the last time I did it, they said, okay, well, if you violate this court order in any way, then you’re going back to jail. You’re on probation for a year. 

Elizabeth: Right. And I have had this crazy case going on for years and years – 18, I think… 

Sarah: 18 years!?

Elizabeth: No, since ’18…haha…and he has been held in contempt, I think five times and the day before the purge…because a lot of times they’ll say “You’re going to jail, lets suspend it and come back in 20 days or 30 days and pay your expense, and damn if he doesn’t walk in every time and have cash money, and purges himself, and never goes to jail. He does pay attorney’s fees, but obviously that’s not a problem for him. But he – I think there ought to be, at some point, you can’t purge ya know? Shouldn’t be able to purge yourself. 

Sarah: Like automatically go to jail. 

Elizabeth: Yeah. Go to jail. Don’t collect $200. You go to jail.

Sarah: Yeah. I wish. So that’s more so the criminal contempt The civil, like we said before, it was like, pay this purge yourself.

Elizabeth: Right. 

Sarah: And one of those can be, if you don’t purge yourself, then you do face jail time too.

Elizabeth: Right. So either way, even though it says civil, you can be sitting in the Wake county jail for a little bit. 

Sarah: All right. So let’s think about the defense here. If you’re representing someone who is late on their child support or hasn’t paid, you know, what are the things that we could show to defend ourselves against a contempt charge? 

Elizabeth: Number one, you have to have a valid order that’s in place, and then you have to be willful about it. So if you lost your job, you’ve been actively looking for a job, you’ve used all your savings, you don’t have money that you can pull out or something like that, then it’s not willful on your part. 

Sarah: Right. You have to have the ability to comply. 

Elizabeth: Right. So that’s one way that you do not have to pay it and then not be held in contempt. 

Sarah: The order still stays in place, so that person will still need to pay up one day. 

Elizabeth: Yeah. And I always say to clients, if you can pay $5. If you can make some good faith effort to pay something, judges, I think, really appreciate that in some way. 

Sarah: Yes. They’ll give you a lot of – if it actually is an ability to pay situation – they’ll give you some slack on that. 

Elizabeth: Right. Right. Yeah, so there is a defense to it.

Sarah: Yeah. And the same respect for a custody order. If you are trapped in a snowstorm in New York City and you can’t get out – although you can usually get out of New York City – anyways a different place, and can’t get there for the exchange of the child…

Elizabeth: Or your flight isn’t going out and you can’t get here.

Sarah: Yeah, You can’t be held in contempt for that because it was beyond your powers.

Elizabeth: Right. And so, I’ve had a case…this is years ago too, where a 16 or 17 year-old wouldn’t get on the plane. Mom literally went with them, tried to get them on the plane – kicking and screaming would not go – the judge held her in contempt.

Sarah: Yeah. 

Elizabeth: I don’t know how that’s willful.

Sarah: You see different aspects of that. Because a lot of times people will not hold them in contempt if the kids…

Elizabeth: Right, they’ll say “I can’t make a 16 year old do what they don’t want to do.” 

Sarah: And how do we show that it’s actually the 16 year old and they haven’t been alienated by mom or dad and actually… 

Elizabeth: It’s hard. You know, maybe it’s just a judge having a bad day. Missed lunch, you know? I had to work late. I don’t know.

Jen: Hangry. Haha… 

Elizabeth: Which does happen you know? Judges are human, and I think sometimes we forget that and the cases that they have to sit there and listen to all day. 

Sarah: A lot of people think that as long as the kids say they don’t want to go, then they don’t have to go. And then it can be held in contempt. 

Elizabeth: Yeah. You have to encourage them. I mean, literally put them in a car, drive them over there. If they won’t get out, then they won’t get out, ya know? Which is a shame.

Sarah: Yeah. What do we lock them in? You tell them, like, if you guys get out of the car, then I’m not going to do this with you? You’re not going to go to Disney. 

Joe: You can try to tell them that mom’s going to go to jail. 

Sarah and Elizabeth: And they do!

Elizabeth: They do say that!

Sarah: It’s heartbreaking how you see the parents alienate children against the other parent. With, “They’re going to send me to jail. They want to send me to jail.” Blah, blah, blah, blah, blah.

Elizabeth: And it’s so hard too, as a parent, I mean, I’ve never had to go through this, but it would break my heart if my child did not want to go – kicking and screaming – at dad’s house. Ya know? But then you gotta. What do you do? I mean, it would just break my heart to leave that child there. I mean it’s hard.  

Sarah: I don’t know. I think there’s a lot we don’t know. From, ya know, how much is that from someone saying something about the other parent? Or is the other parent really that awful?

Elizabeth: Right. So you don’t know, but something’s going on. You know?

Sarah: Something’s going on in some house. Maybe both houses. I don’t know. Maybe that’s the problem in the reality of these custody cases. There’s only so much that we can prove in court. 

Elizabeth: Especially if it’s a small child, because the child comes home and says this happened, and this happens. Well, that’s great, but I can’t get that in as evidence.

Sarah: Have you had a contempt case where there’s a refusal to go and subpoena the kids? 

Elizabeth: No. Well, one time and a judge that will rename nameless, looked at me and said, “Ms. Stephenson, if you do that, it will not look good for your clients.” 

Sarah: Ugh. I asked this because I have a case similar to this, like right now. And I’m like, oh, maybe I should subpoena the kids, but you don’t want to have to do that. 

Elizabeth: Oh, if they’re 16 or 17 that I think that’s okay, but 10, 11? I just think that’s wrong. If you think something’s going on and you have a good faith basis for it, and your child has said something, then call CPS. 

Sarah: Yeah. 

Elizabeth: Getting them to a therapist is the best thing to do, is what I would say. My 2 cents.

Sarah: No, those are all good suggestions. My, you know, I’m on the other end of things, where the kids don’t want to come to my house, I would say. 

Elizabeth: Your kids? 

Sarah: Not my kids. These make-believe children that I’m talking about that don’t want to come over. Yeah, those situations are just hard. 

Elizabeth: I agree. And sometimes as a parent, the best advice you can do is like take a breath, sit back. Check-in you don’t have to come this weekend. I understand. You know, kids are smart. They get it. And especially a teenager. You can’t push it on them. They’re going to push back, ya know. So Sometimes you just gotta not do anything at that point – Sometimes. And, what’s the point sometimes when they’re 16,17 years old?

Sarah: I mean, sometimes they’re younger. 

Elizabeth: Younger, different yeah, I agree. 

Jen: Refer back to the episode about how to talk to your children about divorce. So sometimes we get folks that call in that they’re here now, in Wake County, for six months or more, and they want to find out what they can do because of orders not being followed, but the order is not out of North Carolina or Wake County.  What needs to happen in those instances? 

Sarah: It depends.

Elizabeth: Needs to be registered. First, it has to be registered for enforcement and that’s literally – there’s a form on that at the AOC or Administrative Office of the Courts or contact an attorney – fill it out. It gets set for hearing and the judge registers it. And then you can file a Motion for Contempt.

Sarah: Right. That’s if it’s an out-of-state order. If it’s a different county, then you probably just need to stay in that county until there’s a good reason to transfer it to the new county you live in. 

Elizabeth: Right. 

Sarah: But out of state – Yeah. You register it right. 

Elizabeth: Because we don’t have jurisdiction over that. But that’s advice for anybody whether they’re having problems or not. If you’re moving in from another state, just register it in case something pops up. 

Sarah: You can register it for enforcement. You can register it to modify it. 

Jen: And we’ve talked a lot about court orders, but a lot of our clients have separation agreements that outline the terms of custody, child support, things like that. So if somebody is not following the terms of the separation agreement, what’s recourse for that?

Sarah: We go to court. You end up in court anyways. 

Elizabeth: Well, it’s a breach of contract, which is like if you bought a car and you didn’t pay it, same difference. If somebody’s not following it, but you’re not going to go – it’s not contempt. You’re not gonna go to jail. The problem with that is if it’s like, they owe you back child support… like they owe you $50,000 in back child support…all the court can do is enter a judgment. And you can – it’s not register. What’s the word I want? – register with the clerk, but then you have to re-register it every 10 years, and it just goes on their credit report. Or if they, you know, sell a house or they have a bank account, you can attach to that. But the court…that’s why a court order is so different because the court can go back and order that person to pay you that amount now and not have to go through a judgment. So there is a difference in that respect.

Jen: So then would you…cause I know sometimes when people do separation agreements, there’s – I don’t feel like it happens too often around here that I’ve seen in any way – registering separation agreements with the court. I know there’s pros and cons to that. So can you speak a little bit…would that help alleviate some of that, or how does that work? 

Sarah: It would and depending on which side you’re on is why you would want to either incorporate it or not.  So what you would do is you have a contract and you’re not divorced yet. So then you’re eventually going to go through the divorce to get your absolute divorce and remarry, what have you. And through that process, you can incorporate your separation agreement into the divorce decree and make those terms an order of the court. I think the standard is to not do that.

Elizabeth: Right. 

Sarah: And there’s different reasons for doing it.

Elizabeth: I think the point or a lot of the reason is these people did a separation agreement because they didn’t want a court order.

Sarah: They don’t want to go to court. They’ve already worked together to resolve their issues in something without going to court. So let’s stay on that path. Let’s stay on that road. And you know, if something comes up down the line, talk to your attorney, we can send some letters back and forth, maybe resolve these issues amicably or through an amendment to the separation agreement and stay out of court. So if you incorporate it and there’s terms for alimony in there, well, that might be modifiable down the road, and that’s dangerous for people who are going to be paying the alimony if the other people ask for more. Or it could be that they want less than to modify it down. So you need to think about that whenever you’re going through your negotiations. Same thing with child support, but you can always file in court for child support so that’s not as big of an issue. 

Elizabeth: Right. Same thing with custody too. You can always file with the court for that.

Sarah: And custody terms are not generally what you’re going to file a breach of contract over because the court can’t be like, “Okay, you owe them a week of visitation from last summer.” 

Elizabeth: Right. You’re just going to file a complaint for custody to get it modified.

Sarah: Yeah, it doesn’t really work that way. So definitely talk to your attorney about incorporating the separation agreement or not. I generally do not do that. Also then all your terms are then a court order and in the court file and everybody knows your business. Everyone knows like the last four digits of your accounts, you don’t want that. 

Elizabeth: And how much money you had in your 401k and all of that. 

Sarah: Yeah. Sometimes we will do a memorandum and register that with the Register of Deeds and all that really says is that there is a separation agreement out there. 

Elizabeth: Right. And you can buy and sell property, pretty much.

Sarah: Yeah and put a free trader in there, but just notifies, like, okay these people have a separation agreement. 

Elizabeth: Right.

Sarah: And if you want to see it, ask one of them for it. Same thing with a prenup. Sometimes you register a prenup and it says, “Hey, these people have a prenup.” So down the road the other person can’t say, “Oh, that’s not true. We don’t have the prenup.” It’s like, “Oh, it’s with the register of deeds. What are you talking about?” Yeah. So with contracts, you might still end up in court, but you’re not going to be getting a court order to enforce it. 

Elizabeth: Well, you’ll get a court order for breach of contract, and then you’ve got a court order. So then if they breach it again, then you get contempt. So it’s like a two-step process. 

Sarah: Yes. Yes. And generally your attorney is going to advise you based on their experience, what they think you’re best with. You know, I hear people and I’m like, oh, these two can work together. I think a separation agreement is going to work well for them. Or you know, you’re getting the case and you’re like, “Oh, no. Let’s consider just going to court.”

Elizabeth: Right. So you have court orders and then you have consent orders. Is there a difference when it comes to contempt, if it’s consent or not?

Sarah: No. 

Elizabeth: I think it helps a little bit, because your whole line of questioning is “Now, sir. You saw it, you could agree to this and you understood the terms.” It makes it a little harder to get the willfulness sometimes out of there. So, just my thoughts.

Sarah: Yeah. But I mean, you face jail time in family court if you don’t do what you’re told. 

Elizabeth: That’s right. That’s the bottom line. Do what you’re told. 

Sarah: Exactly. Ain’t that some shit. 

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