January 10, 2018
Court orders have a special enforcement action that doesn’t exist for regular contracts—they can be enforced by the court’s contempt powers. If your ex is not complying a custody order or another agreement approved by the court, you can file a motion for contempt to enforce the order.
A finding of contempt can result in serious punishment, including possible jail time. However, you need to show that all of the elements of contempt exist to support your motion and win your case.
Agreements Vs. Court Orders
Many parents or former spouses choose to come to an agreement on their family law issues rather than litigating them in court. Separation agreements, custody orders, child support payments, and property distributions can all be made by agreement, which saves time and money and eliminates the hassle of litigation.
However, these agreements do not become court orders until they are filed with the court and approved by a judge. Only then is an agreement a court order that can be enforced by a charge of contempt.
If your ex is violating your separation agreement, but you didn’t get the agreement approved by a court, you won’t be able to file a motion for contempt. You will only have the remedies available for enforcing a regular contract.
North Carolina’s Contempt Laws
- 5A-21 lays out North Carolina’s requirements to show civil contempt. As you would expect, the law provides that a failure to comply with a court order is contempt, which can be enforced by imprisonment of up to 90 days for each act of disobedience. However, there are two other important requirements—the failure to comply must be willful, and the person charged with contempt must be able to comply with the order.
Contempt will also only be found for violating a provision in the court order. If your ex is simply behaving badly, this won’t support a finding of contempt unless some part of the court order is not being followed.
These requirements can create a number of possible defenses to a contempt charge. For example, if your ex is doing everything they can to get your child to comply with the court order, but the child refuses to obey, your ex will most likely not be found in contempt of court because they are not willfully violating the court order.
How to Handle a Potential Case of Contempt
If your ex is failing to comply with a court order, document each instance of contempt. Filing a motion for contempt will often convince your ex to begin complying with the court order in order to avoid possible jail time.
It’s also important to remember that a court order is binding on both parties, and the appropriate remedy for altering a court order is seeking a modification from the court. For example, if you believe your ex is presenting a danger to your child, you need to be very careful about violating a custody order or preventing visitation that was ordered by the court, or you may find yourself being charged with contempt.
If your ex is violating your custody order or you need to request a modification from the court, consult with a family law attorney.
King Law Offices is a full-service law firm with an outstanding team of professionals who work diligently, creatively and compassionately on behalf of our clients each day. We serve the Upstate of South Carolina and Western North Carolina. Call 888-748-KING (5464) today for a consultation.