filing a contempt motion in Wisconsin

WHAT TO DO WHEN SOMEONE IS NOT FOLLOWING THE COURT ORDER IN A FAMILY ACTION

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When you obtain a court order after months of litigation, sleepless nights and mountains of attorney bills, you expect that this court order will be followed.  However, what happens when your former spouse or the other parent in your matter does not follow the court order?  What are your remedies and what can you expect to happen?

If you are faced with a situation where a party is not following a court order, you may be able to file a motion to have him or her found in “contempt”.  Contempt is a legal term which means that a person is deliberately and intentionally not following a court order.  The remedy for a contempt can range from financial sanctions, jail time and attorney fees.

At the contempt hearing it is important that you have evidence supporting your claim for contempt.  For instance, if you file a contempt motion because the other parent has not reimbursed you for half of the kid’s expenses, the court is going to want to have evidence that 1) the expenses was actually incurred 2) you presented the expense and the receipt and 3) he or she refused to pay.  In this circumstance, if you file a contempt, but do not have evidence that you provided the expenses request (email, certified mail or Our Family Wizard confirmation)  the court will be unable to find that the other parent acted intentionally in not paying you.  Accordingly, he or she will not be found in contempt.    Conversely, if you have documentation of emails, letters or the like requesting reimbursement and the other parent simply refuses it is likely the court will find him or her in contempt.   A person can be found in contempt for failure to follow any court order and the evidence required to support your client will vary.  It is crucial for the success of your claim that you have all the supporting documentation before you file.

If you are successful at a contempt hearing and the court finds the other party in contempt, he or she must be granted a purge.  A purge is a set of conditions that need to be complied with in order to avoid jail time. If a purge is not met, then the other party will have to serve the jail sentence ordered at the contempt hearing.  If the purge is met, then the reason for the contempt has been alleviated and the issue is considered resolved.

Attorney fees may be awarded if you are successful with your motion.  The amount of attorney fees awarded will vary depending on the circumstances of each case, the severity of the contempt and the amount of financial damage the contempt cost you.  It is also possible that you will not receive attorney fees despite the court finding the other party in contempt.  Contempt motions can be very detailed and require evidentiary hearings.  However, it is important that you do not tolerate the non-compliance of a court order.  Meet with an attorney to discuss your options.  At Nelson, Krueger & Millenbach, we will meet with you to discuss your case and help you evaluate your options so you can determine the best course of action.  Call us at 414-258-1644 to schedule a free initial consultation or visit our website at http://www.nkmfamilylaw.com.

Contempt of Court in Wisconsin

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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.

Modification or Enforcement of a Court Order in a Wisconsin Divorce

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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.