Contempt of Court in Wisconsin

If a party intentionally and without legal justification disobeys a court order, this is called being in contempt of court and the law provides a remedy through a finding of contempt.

In family or divorce actions, the most common examples of contempt are when one party fails to pay child or spousal support or if one party refuses to honor the custody and placement (visitation).

In Wisconsin, to address or obtain relief from the court for the contempt, the party who is harmed by the violation of the court order must file a Motion with the court describing the contempt in order to have the matter heard. This Motion must be personally served on the violator at least five (5) business days before the date of the hearing.

If the violator is found in contempt, the court has the authority to order the violator to correct the contempt and also to order sanctions or penalties as a result of failing to comply with the court order. This may involve more than one hearing because the court must allow the offender an opportunity to obtain counsel. The court must also set “purge conditions” which is an opportunity to purge or correct his or her contempt by setting tasks to be completed or payments to be made in order for the violator to avoid further punishment. Some of the sanctions available to the judge are payments, wage garnishment, attaching or seizing assets or even jail time.

The court also has broad discretion to come up with other, more creative solutions to force the violator to comply with the terms of the decree. For example, if a party was court ordered to sell the marital residence by a certain date but did not do so, the court may give the violator a certain period of time to sell the home in order to avoid a finding of contempt. If the violator is successful in selling the home in the time ordered by the court, the violator completed the appropriate purge condition and would not be found in contempt.

The harmed party may also ask the court to order that the violator be responsible for paying the harmed party’s attorneys fees and other expenses associated with the Motion. The court will often do so as a way to punish the offender.

It is important to note that if a violator is found not to have an ability to pay or comply with the court order, for whatever reason, then he or she cannot be found in contempt. For example, if someone becomes ill and cannot work, then they are not in contempt for failing to pay support because they do not have the ability to pay. Or, if someone tries to sell a home pursuant to court order but cannot do so, they are not in contempt because they did try to comply with the order.

If you are in a contempt situation, whether you are the party seeking relief or the party who is out of compliance with the court order, it is best to consult with an experienced family law attorney to assist you for the best possible results. For more information or a free initial consultation if you are in our practice area, visit our website at www.nkmfamilylaw.com or contact us at 414-258-1644.

Questions about Post-Judgment Issues in a Divorce in Wisconsin

Here are the answers to some of the most common questions we get about post-judgment issues in a divorce or paternity.

1. How do I change my placement and or custody arrangement?

a. If your original judgment was entered less than two years ago, you must have substantial evidence that the current custody order and/or placement order is either physically or emotionally harmful to the child(ren). If you have evidence supporting such harm, a Motion must be filed with the Court. The Court will then determine if the requested change is in the child(ren)’s best interest. This “two year rule” only applies to original custody and placement judgments.

b. If the original judgment was entered more than two years ago, you may seek a modification of custody and placement if there is evidence that there has been a substantial change of circumstances since entry of the last order (not necessarily the original order) and that you must show that modifying the judgment is in the child(ren)’s best interest. A Motion must be filed with the Court to address the proposed change.

c. Parents can agree at any time to modify custody and/or placement without having to return to Court. A Stipulation can be filed with the Court to make the agreed upon change part of the Court’s Orders.

2. What is the process for modifying a judgment regarding custody and/or placement?

A motion must be filed with the Court in the county of the original action. There will be an initial hearing in which the Court will determine if there is enough evidence to proceed. If it is determined that the motion should proceed, you and the other party will be ordered to participate in mediation. Mediation is almost always mandatory, except in cases of domestic violence. If you are able to reach an agreement in mediation, a Stipulation must be filed with the Court outlining the terms of the agreement.

In the event an agreement is not reached, the Court may order that a Guardian ad Litem be appointed to represent the best interests of the child(ren) and/or custody study be commenced, depending on the county of your case, to investigate the claims and make a recommendation regarding the proposed modification. A Guardian ad Litem is an attorney who is appointed to represent the best interest of the child(ren). He or she conducts an investigation and then makes a recommendation to the court.

3. How long will it take to resolve my motion for modification?

The answer to this question depends on whether the parties reach a Stipulation or must proceed to a trial or hearing. If the parties proceed to a trial, the process can likely take up to 10 months to a year, or even longer, depending on the unique facts or your case and the county in which your case is filed.

4. How do I lower/raise my child support or family support?

Child support and family support may be modified if there is a substantial change in financial circumstances. If you, as the payor, were to lose your job or have your wages substantially reduced, this may be considered a change in circumstances justifying a reduction in support. However, if the payor receives an increase in wages or obtained a higher paying job, then a motion may be filed by the other party requesting an increase in support. Please note that the Court can only modify support back to the date the other party received notice of the Motion to modify support, not the date of the change in income.

5. Do I have to provide my ex-spouse copies of my W-2 and or paycheck?

If you are paying or receiving support, then yes, you must provide documentation of your current income or risk being found in contempt of Court.

6. What do I do if I no longer feel that my divorce settlement is fair?

Once a divorce is finalized the only modifications that can be made are maintenance, child support, family support, placement and custody. The property division cannot be modified after the divorce is final. An exception to this rule would be if it is discovered that your spouse hid an asset which was not included in the settlement. Should that be the case, then the Court would consider reopening the Judgment of Divorce to address the division of the non-disclosed asset.

7. What should I do when the other party is violating the orders?

If one party fails to pay child or spousal support or refuses to honor the custody and placement (visitation) order, the law provides a remedy through a finding of contempt. Again, a Motion must be filed with the court. If the violation involves child or spousal support, the court can garnish wages or force the violator to pay in other ways. Sometimes, the violator is sentenced to a jail term as well. The court also has broad discretion to come up with other, more creative solutions to force the violator to comply with the terms of the decree. The court can also order the payment of attorneys fees or other penalties.

If you are being denied placement, you can file a Petition to Enforce Placement to force the other party to comply with the court order. The court again has broad discretion to enforce a placement schedule, including awarding make-up time, changing the schedule or awarding attorneys fees and costs.

The attorneys at Nelson, Krueger & Millenbach, LLC can assist you with any of these problems and can further answer any questions you might have.

Modification or Enforcement of a Court Order in a Wisconsin Divorce

Can you change a court order in a divorce in Wisconsin?  If so, how is this done?  What if someone isn’t following court orders?  How can you enforce an order?

Orders regarding property division are permanent and generally cannot be changed unless you file a Motion to Reopen.  A waiver of maintenance at the time of the divorce judgment is also a final order and cannot be changed except upon extreme or unusual circumstances.

However, spousal support, child support, custody and placement (visitation) arrangements do not have to be permanent. They can be outdated, changed or violated. When this happens, individuals must ask the court to grant a modification or to enforce the decree.  You must do those by filing a Motion with the court.

The court will entertain a request for a modification of an order if, after a required period of time, there has been a substantial change in your life or the life of the other party that justifies altering the decree. Any of the following may qualify as a significant change:

-A substantial change in either spouse’s income or employment status

-A new health problem which impacts the ability to work

-Moving to a new location

-Substance abuse problems or criminal activity

The exception to this rule is for a period of two (2) years after an original custody or placement order, you must show that the current custody or placement arrangement is harmful to the child(ren).

If one party asks for a modification and the other party doesn’t agree, this dispute can be resolved through negotiation or through the courts.  At Nelson, Krueger & Millenbach, LLC, we always try to minimize conflict and are local leaders in using collaborative and cooperative techniques to resolve disputes.  However, we will also vigorously represent you in court whenever necessary.

If one party fails to pay child or spousal support or refuses to honor the custody and placement (visitation) order, the law provides a remedy through a finding of contempt.  Again, a Motion must be filed with the court. If the violation involves child or spousal support, the court can garnish wages or force the violator to pay in other ways.  Sometimes, the violator is sentenced to a jail term as well. The court also has broad discretion to come up with other, more creative solutions to force the violator to comply with the terms of the decree.

If a placement order is not being followed, you can file a Petition to Enforce Placement to force the other party to comply with the court order.  The court again has broad discretion to enforce a placement schedule, including awarding make-up time, changing the schedule or awarding attorneys fees and costs.

Returning to court is not an ideal option for anyone. However, there are remedies available to you in the event you need to modify or enforce a court order.  The attorneys at Nelson, Krueger & Millenbach, LLC can assist you with any of these options and advise you as to the likely or possible results so you can make an informed decision as to whether you want to return to court through a post-judgment action.  At Nelson, Krueger & Millenbach, LLC, we handle modifications, disputes and enforcement cases with compassion and diligence. Our lawyers are prompt, detail-oriented and persistent. For a free initial office consultation, contact us at (414) 258-1644.