Let’s say you go through the entire process of reaching a comprehensive divorce agreement. Or let’s say you went through an entire divorce or modification trial. At the end of that process, there’s a judgment where the court lays out all of your rights and obligations and the rights and obligations of the other party.
But what if the other party doesn’t do what they’re supposed to do? A judgment of divorce, a modification judgment, or a separation agreement are pieces of paper. They’re important pieces of paper no doubt, but people fail to comply with judgments and orders all the time. So often that there’s a type of action created to address when one party claims the other hasn’t followed the orders or judgments in place – it’s called a contempt action.
The attorneys at Hastings, Jamieson and Lipschutz Family Law Group have represented hundreds of clients in contempt actions – both plaintiffs (who claim the other party didn’t comply with the order) and defendants (who are accused of noncompliance).
In this article we’ll give you an overview of the contempt process so you know what to expect, whether you’re trying to pursue a contempt action or defending against one.
THE STANDARD
A contempt action is different from a divorce action in that in order to obtain a contempt judgment, a plaintiff needs to present a case which meets the legal standard. As part of a contempt action a plaintiff needs to demonstrate a clear and unequivocal order or judgment and a clear and undoubted disobedience. Let’s break that down into individual parts.
“Order or Judgment”
Let’s take things a bit out of turn and focus on the order or judgment aspect of a contempt. What is an order or a judgment? Simply put, an order or a judgment is a ruling issued by the court (in this instance, the Massachusetts Probate and Family Court). An order is entered during litigation – like an order on a motion. A judgment is issued to conclude litigation.
If two parties reach an agreement and submit it to the court, the court will likely incorporate the terms of that agreement into its order or judgment. If the court issues an order after a contested hearing or a judgment after a contested trial, then the court will likely set forth all the provisions in the order or judgment itself.
It’s very important to note that an agreement between two parties alone – without being incorporated into an order or judgment – is not sufficient to give rise to a contempt. Here’s an example:
- Wendy and Hank are separated.
- Wendy and Hank agree via email that Hank will pay Wendy $200 a week in child support. No order is entered incorporating their agreement.
- Hank pays Wendy the agreed-upon child support for two weeks then altogether fails to pay child support for another three weeks.
Believe it or not, Wendy probably can’t succeed on a contempt action against Hank for the three weeks of child support. Why? Because it wasn’t reduced to an order or judgment. Bottom line, even if you think you’ve reached an agreement with the other side, make sure it’s in writing, and make sure a judge has incorporated it into an order or judgment.
“Clear and Unequivocal”
So you have an agreement and that agreement was incorporated into an order or a judgment – great! And then one party doesn’t comply with the terms of that order or judgment – not so great! How do you get a judge to find that a party has violated the terms of an order or judgment? You have to look at what those specific terms are.
In order to find a party in contempt, the court must find that there was a “clear and unequivocal” order or judgment. This has everything to do with how well the agreement, stipulation, order or judgment was worded. Sometimes these pleadings are so well-drafted that there is absolutely no way that language could be misinterpreted; other times, not so much. Here are some examples of good, clear and unequivocal language, and not so clear and unequivocal language:
| Clear and Unequivocal | Vague and Unclear |
| “Hank shall pay Wendy $200.00 per week in child support every Friday, beginning February 1, 2020.”
|
“Hank shall pay Wendy a reasonable amount of child support on a regular basis.” |
| “Wendy shall have parenting time with the children every Wednesday beginning at 3:00 p.m., ending at 7:00 p.m. Wendy shall be responsible for pick up and drop off of the children.”
|
“Wendy shall have parenting time every Wednesday.” |
| “Hank shall retain the residence located at 123 State Street and shall pay to Wendy the sum of $300,000.00 within ninety days of the date of this agreement, representing Wendy’s one-half share of the equity in the property.” | “Hank shall retain the residence and pay to Wendy one-half of the equity.” |
Do you see the difference between the two versions of language? Take a look at the “vague and unclear” examples. On the child support example, if Hank failed to pay Wendy child support each week, Wendy would have trouble with a contempt against Hank. What is a regular basis? How often does Hank have to pay child support? What is the child support amount? What is “reasonable”? Without at least knowing how much Hank has to pay and how often, there’s no way to know what Hank owes Wendy.
Take a look at the parenting time example. Let’s say Hank lets Wendy see their kids each Wednesday, but only for 20 minutes. If Wendy files a complaint for contempt, she probably will have a tough time again. She had parenting time each Wednesday; Hank wasn’t required to give her more parenting time because the language didn’t specify that.
Finally, look at the language on Hank buying out Wendy’s share in the residence. There’s no timeframe on when Hank needs to pay Wendy and there’s no amount. It’s conceivable that we could figure out the equity value is, but that would be a whole lot more work and energy, maybe requiring an appraisal. It’d be much easier and straightforward just to put down a value.
Bottom line, the murkier the language, the less likely a plaintiff will prevail on a contempt.
“Clear and Undoubted Disobedience”
Just as with the “clear and unequivocal” order/judgment provision, the failure to comply by the defendant must be clear-cut and undisputed. Just like the “clear and unequivocal” order/judgment standard, the murkier the non-compliance, the tougher the contempt action.
Here’s a classic example of the “clear and unequivocal order” and “clear and undoubted disobedience”:
- The court orders that Hank is required to pay Wendy child support every Friday in the amount of $200.00 per week.
- Hank fails to pay child support for three weeks.
- Hank owes Wendy $600.00 in child support.
Is Hank in contempt? Probably. Why just “probably”? Because it might depend on the reasons why Hank didn’t pay child support.
What if Hank just outright refused to pay child support? That’s a contempt. But what if Hank lost his job? What if Hank was in the hospital? What if Wendy was supposed to pay Hank money based on another provision in the order or judgment and she failed to do so?
It’s important to note that the Massachusetts Probate and Family Court is a court of equity. What is equity? That’s kind of hard to pin down to an exact definition. But the Probate and Family Court has a lot of discretion in their decision making and the judges can take a number of different factors into consideration when making a decision – like finding someone in contempt. That can include excuses.
THE PROCESS
So let’s say that you are going to move forward with a contempt action, or you believe a contempt action will be filed against you. What does this process look like? Here’s an overview of the contempt process, from beginning to end:
- The plaintiff (the party claiming that there was a violation of the order or judgment) files a complaint for contempt with the appropriate Probate and Family Court division.
- A summons (formal notice of the contempt) is issued.
- The plaintiff has the summons and the complaint served on the defendant.
- The defendant files an answer.
- The parties possibly engage in discovery, perhaps contested motions.
- At some point, there is a contempt hearing. This can be an evidentiary hearing – which is similar to a trial, or it could be similar to a standard motion hearing.
Keep in mind that a contempt can occur in the midst of other litigation. For instance if in the process of a divorce the court issues orders and one party violates the orders, there could be a judgment of contempt before the divorce is even concluded!
THE RELIEF
When you engage in a legal action, you’re trying to obtain something. What you’re trying to obtain is called your desired “relief.” A lot of times, the relief you can get is limited by the law.
In Massachusetts, a plaintiff in a successful contempt action can get relief, but that relief is meant to put the plaintiff back in the place they would have been if the defendant had complied with the court order or judgment.
Let’s take Hank’s child support obligation to Wendy. To recap:
- The court orders that Hank is required to pay Wendy child support every Friday in the amount of $200.00 per week.
- Hank fails to pay child support for three weeks.
- Hank owes Wendy $600.00 in child support.
If Wendy succeeds in her contempt action, it’s likely the court will order Hank to pay her the $600.00 owed, perhaps with interest, and – depending on the severity of the disobedience – perhaps order Hank to pay Wendy’s attorney’s fees. That doesn’t put Wendy in exactly the same position she would have been if Hank had complied with his child support obligation, but it’s a start.
