If you are pursuing a divorce in California, it is important to understand all aspects and possibilities that may arise during your proceedings. Under California Law, a party subject to a valid court order-with knowledge and the ability to comply with the order-who fails to comply with the terms of the order, is subject to contempt adjudication and statutory contempt penalties.
In California, a contempt proceeding in family law cases is initiated by the filing of an Order to Show Cause and Affidavit for Contempt with the Court. The person alleged of being contempt, the “citee,” is then served with a copy of the papers.
The facts of the case are outlined in an “affidavit of contempt.” This type of document sets forth the type of order violated, how the order was violated and when the violation occurred. Jurisdiction will occur when there are enough supporting facts that contempt has been made. The citee must in turn be notified of the charge and the time and place for the court hearing.
The decision for the contempt charge cannot be decided on the moving and responding papers alone. The citee is entitled to a formal hearing and be allowed to testify, call in witnesses and present evidence if needed in defense of the charge.
Orders that are enforceable by Contempt Include:
- Support Orders: These are orders focused around child, spousal and family support. They are based on an obligation arising out of marriage and parentage and are imposed by law.
- Child Custody & Visitation Orders: The court may be able to bring into play its contempt power against a parent who unjustifiably interferes with the other parent’s court-ordered visitation rights.
- Attorney Fees/Costs Orders: These are determined on a need-basis and attorney fees and costs are enforceable by contempt if deemed a law-imposed obligation.
- Property Division Orders: A spouse who refuses to relinquish a specific item of property or to pay over a portion of a specific fund of money pursuant to a community property division order is subject to enforcement by contempt.
- Restraining Orders & Family Court Protective Orders: When working with valid protection orders and restraining orders issued in domestic relations proceedings, the court may invoke its contempt power to enforce compliance.
- Failure To Comply With “Declaration Of Disclosure” Requirements: A spouse who has complied with the statutory “declaration of disclosure” requirements in marriage dissolution proceedings has various statutory remedies against the other spouse who has failed to comply.
- Marital Settlement Agreement Obligations Not Merged Into Judgment: Only obligations enforced or incorporated in the judgment or a marital settlement agreement are enforceable if not met. The obligations must be ordered within the judgment to be enforced by contempt.
- Marital Debt Liability Orders: If a spouse is required to make specified payments under the terms of a community liability order, this action is not enforceable under contempt unless the obligation is an integral part of the support order.
Now that you know what actions can be enforced under contempt, it is important to understand the proper due process in order to fulfill your requirements if you find yourself in a situation requiring this action.
Due Process of Contempt
- Notice of the Charge: The citee must be formally notified of the charge, and the time and place the court proceedings will take place.
- Opportunity to be Heard: As mentioned previously, contempt cannot be decided through paperwork. The citee is entitled to a formal hearing to have their chance to defend themselves against the charges.
- Right to Counsel: The citee has a right to be represented by an attorney.
- Application Of The 5th Amendment: The citee is entitled to exercise their 5th Amendment rights and not be called as a witness and decline to answer specific questions while claiming the privilege against self-incrimination.
- Criminal Burden of Proof: The citee has a right to proof a contempt case beyond reasonable doubt. The contempt must be dropped if the accusing party cannot bring forth the proper evidence.
- Right to Jury Trial: The right to jury trial in California is granted for all criminal prosecutions above an infraction. If the outcome would be equivalent to a 5-day jail-time or $1000 fine, the court has the power to invoke a summary trial without a full jury.
- Double Jeopardy: Constitutional protection that a person will not be subject to duplicate punishment or duplicate prosecution for the same criminal offense.
Initiating a Contempt Proceeding
Contempt proceedings require a charging affidavit to begin. One spouse will file the appropriate paperwork and must prove provide prima facie contempt. A prima facie case alleges facts that prove an underlying conduct supporting the cause of action as fact, unless proven otherwise. The court will then decide upon a hearing date and issue and order stating the time and location to be handed to the citee.
When filing contempt under family law cases, the filer must outline the type of order violated, the date the order was enforced, how the order was violated, and when the violation occurred.
For more information about Contempt and family law, check out our Divorce Guide or contact Aaron Dishon today.