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I offer online mediation to facilitate agreement on divorce and family law matters while the courts are closed operating on a limited basis

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Contempt Proceedings

There are times where one party to a court order does not comply. In such a situation there are options available to seek enforcement. Sometimes a Motion To Enforce can be filed and sometimes a Motion for Contempt of court is also an option. The two common types of contempt actions are remedial and punitive. They are distinguished by the purpose of the action. If the purpose is to ensure compliance with an order, that is remedial contempt. If the purpose is to penalize someone for their failure to follow the order, that is punitive contempt. The legal elements are similar for each, however not exactly the same. Many motions pursue both remedial and punitive contempt, however the elements of each claim are slightly different.

Remedial Contempt

The main purpose of remedial contempt is to obtain compliance with the court order. Sanctions can include performance of a specific act, fine or imprisonment. Imprisonment may continue only until performance occurs in compliance with the court order. The incidents of noncompliance must be described with specificity in the motion. The motion must:

  • Identify the order violated
  • Identify that the accused had knowledge of the order, and
  • Identify with specificity how the order was violated

Elements that must be proven to prevail are:

  • A lawful order was entered
  • The accused had knowledge of the order
  • The accused did not comply
  • The accused had the ability to comply
  • The accused has the present ability to comply at the hearing

It does not matter whether a present inability to pay is self-induced, it would preclude imposition of remedial sanctions. Remedial sanctions must include a purge clause which describes how the contemnor can purge the contempt. A one-time violation is incapable of being purged because it occurred in the past so such an act would only be subject to punitive contempt.

Punitive Contempt

The main purpose of punitive contempt is to is to penalize for the violation of the court order. Sanctions can include a fine or imprisonment and proof must be presented beyond a reasonable doubt. The accused may invoke the Fifth Amendment right to remain silent, which precludes even conducting discovery. Because of this, punitive contempt must often be proven through testimony if the other party or a third party. As with remedial contempt, the incidents of noncompliance must be described with specificity in the motion. The motion must:

  • Identify the order violated
  • Identify that the accused had knowledge of the order, and
  • Identify with specificity how the order was violated

Elements that must be proven to prevail are:

  • A lawful order was entered
  • The accused had knowledge of the order
  • The accused did not comply willfully
  • The accused has the present ability to comply at the hearing

Is it time to turn change into opportunity? At Janko Law and Mediation, LLC we know how to work with you to reach your transition goals. We are committed to pursuing settlement to preserve family relations to the maximum extent possible, however also zealously represent your interests in contested litigation if desired or necessary. We can also handle appeals if the event that the trial court errors in fact or law. Give us a call for a complimentary case assessment at 303-210-4204, or fill out our confidential online intake form.

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