2011: Contempt & Ability to Comply

In San Diego, in many paternity, legal separation and divorce case, there are orders which are enforceable under the law. Failure to comply with court orders in legal separation, paternity and divorce cases can result in a filing of contempt. Contempt is a “quasi criminal” action in which the sanctions can include both monetary fines and sanctions as well as a criminal conviction and potential jail time. The elements of a contempt are a valid court order, service of the valid court order, non compliance with the valid court order and failure to comply without a legal defense. All contempt citations must be personally served upon the person accused of contempt of court. A party accused of contempt also has the right to ask for appointment of counsel for legal representation which is not available for most divorce cases in general.

The ability to comply with a court order and the willful failure to do so are stated as two separate elements of a contempt. A "willful failure to comply" is defined as simply an intentional failure to comply. Contempt charges can be brought for failure to pay child support. In this instance, the burden of proof to show payments is on the payor. In child support enforcement cases, a parent who, otherwise lacking the monetary ability to pay child support, willfully fails and refuses to seek and accept available employment commensurate with skills and abilities may be held in contempt even though they do not have the funds to pay. In spousal support contempt charges, the burden is on the payee to show that they were not paid per the court order. For other contempt charges for failing to comply, the Court looks at the order to see whether there was compliance or not. The inability to comply with the support order is raised as a defense by the citee and not an element of the contempt which must be proven.

Contempt citations are very serious and, if the contempt citation is dismissed, it is possible to bring a malicious prosecution action in civil court for additional remedies. Consult an attorney immediately if you are served with a contempt citation.

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