The goal of every family law conflict is to come to an agreement. This saves time and money as well as creating less turmoil and animosity than a trial over the children, the money or the assets. Of course, the goal of every trial is the end result, an order resolving the differences of the parties, whether they like the result or not. Unfortunately, once an agreement or order is executed, it is often violated. An agreement is enforced through Specific Performance and an order via Contempt.
Experienced Lawyers in Charlotte
At Weaver, Bennett & Bland, P.A., our family law attorneys in Charlotte can assist you with seeking to uphold your agreement or court order, defending against an unfounded allegation of contempt, or working to resolve the contempt if one exists. Call (704) 844-1400 to schedule an appointment.
What is Specific Performance in Family Law?
Specific performance is a lawsuit to prove to the court that a valid agreement exists, that it has been violated, that the violator has the ability to comply and the party seeking enforcement has performed their end of the Agreement. If the requisites are met, the Court will order the violator to comply with the Agreement, and if the Agreement contained an appropriate attorney fees clause (it should), order the violator to pay the fees associated with obtaining the order. Further violations will subject the violator to being held in contempt of court.
If the Agreement cannot be complied with, it’s possible the judge will issue an order to require what can be performed and a judgment for the part that cannot. An example would be where a former spouse owes alimony of $2,000 a month for 20 years, yet lost his great paying job through no fault of his own and is earning far less now. Say he has an arrearage of $48,000. The judge may make him pay $500 from now on and issue a judgment that can be executed upon for the $48,000. Of course, the $1,500 a month difference is also accruing and can be set to judgment every so often.
What is Contempt?
Contempt is of two sorts: criminal and civil. Criminal contempt is usually used for situations that cannot be set right or “purged” and seeks to place the violator of an order in jail for a period of up to thirty days. A common violation that cannot be purged is withholding certain visitation rights, say over the winter or summer break from school. Of course, placing a parent in jail may be counter-productive where that party is also paying child support. In addition, the violator facing jail time has the right to an attorney which may delay matters.
Civil Contempt is used to make a party follow the Order and to purge themselves of the contempt. If a parent has fallen behind in child support, the contempt order may require the ongoing payment, an additional amount each month to catch up (or maybe a lump sum within a certain time frame) and attorneys fees to reimburse the non-violating party for the costs associated with enforcing the order.
Contempt is initiated by a Motion and a Show Cause Order which requires the alleged violator to prove they are not in contempt. This places the burden in court on the violator, not the party filing the motion although the basis for the contempt should be put into evidence by the moving party.
There may be defenses to a specific performance or contempt action and these issues should be explored whether one is seeking to uphold the document or defend against an allegation of violating the agreement or order.