Problem: You have a Judgment, but your ex-spouse just won’t obey it.

Solution: Use the methods described in this chapter to enforce your Judgment.

Enforcement — OSC re Contempt

Enforcement is in some ways the most important aspect of the divorce process. You have gone through all the work of getting your judgment or order, and now you need to enforce it. While there are cases where enforcement proves impossible, in most cases, if you make some effort to enforce your order, you can probably obtain compliance. The main thing is not to be passive and not to get worn down, but to be firm and insist on enforcement.

An order to show cause (OSC) re Contempt directs a party to come to court and show cause, if any they have, why they should not be held in contempt of court. If a person is found guilty of contempt of court, he/she can be sent to jail for five days for each count of contempt, although usually a lighter sentence is imposed. An OSC re contempt is used when a person has engaged in deliberate disobedience of a court order. Advantage of OSC re Contempt

The advantage of using an OSC re contempt is that it requires only one piece of paper with two sides of writing, so it is a pretty simple document to prepare.

Unlike the document itself which is simple, the evidence required to prove a contempt can be quite complex. Not only that, but as it is similar to a criminal proceeding, you have to prove your case beyond a reasonable doubt, and the accused has the right to remain silent. You have to prepare your evidence with the assumption that your spouse will remain silent. Finally, judges tend to feel that here are two reasonably decent people involved in a nasty divorce, and neither one of them is a criminal. Therefore, judges tend to be very hesitant to convict someone of contempt even when the evidence is quite persuasive. For this reason, it is often a good idea to do both a contempt and a motion for some other type of enforcement at the same time.

You need to read the OSC re Contempt form very carefully. Each part of it is worded very precisely and probably pertains to aspects of criminal law. Your OSC re Contempt needs to be very specific and allege the exact date of each violation and clearly to specify what Order was violated. A vaguely worded OSC re Contempt will be thrown out of court.

You fill out the OSC re contempt form and get a hearing date from the court. You fill in the hearing date, time and department on page one. You have to obtain the judge's signature on your original OSC re contempt. This is done in the same manner as obtaining the judge's signature on any other document. Then you make copies, go to the courthouse and pay the filing fee and file the original OSC re contempt, obtaining filed, endorsed copies.

The OSC re Contempt must be personally served on your ex- spouse; it cannot be served by mail. This will be done as you cannot yourself serve these papers. You must prepare a proof of personal service form after your ex is served, and file it with the clerk of the court. Your ex-spouse is entitled to receive the papers at least 15 days before the hearing of the OSC re contempt. If you do not serve the papers in time, you have to re-do them, get a new date, and start over.

If your ex-spouse had an attorney, once the OSC re contempt has been served on your ex-spouse, you should also send a "courtesy" copy to his/her attorney if that attorney has not formally withdrawn from the case.

If your spouse fails to show up for the hearing, if you have a valid proof of personal service on file with the court, the judge will upon request issue a bench warrant for his/her arrest. The contempt cannot be heard in the absence of the accused party. If necessary, he/she will be arrested and brought to court that way. One can choose not to appear at some court hearings, but one should not miss the hearing of an OSC re contempt.

1. A lawful order of the court exists.
There must be a signed, filed order of the court which has been violated. At the hearing of the OSC re contempt you ask the judge to take judicial notice of the order or judgment on which your OSC re contempt is based, indicating the name of the order or judg­ment, and the date on which it was filed. (All of this information and the exact part of the order violated will be included in the OSC re contempt form. Attach a copy of the order which you believe was violated.)

2. Your ex-spouse knew about the order.
If he/she was present in court when the order was made, or if he/she signed a stipulation, this element will be no problem. You can ask the court to take judicial notice of the fact that he/she was present in court when the order was made, or you can testify that he signed the stipulation. If he/she was not present in court when the order was made, or if he/she did not sign a stipulation, you must make sure that the order or judgment was personally served on him/her after it was filed, and he/she has had a reasonable time to comply with the order after it was served; a proof of service, showing the order was served on your ex-spouse, must be on file with the court. This problem arises when the judge took the matter "under submission" and de­cided it later, or when your ex-spouse did not appear at the hearing, and it went by default. (This part of your proof is stated under item 3a on the first page of the OSC re contempt.) If you cannot prove your spouse knew of the order, you should now arrange personal service of the order you are trying to enforce, do a proof of service, and then later do the OSC re contempt.

3.Your ex-spouse had the ability to obey the order.
In some cases this is obvious with no proof. For example, if your ex-spouse was ordered to stay away from your house and not to harass you, and he/she came over to your house and broke your window, it is obvious that he/she had the ability to comply with the order or judgment. On the other hand, if you are trying to hold your ex-spouse in contempt for failure to pay child or spousal support or attorney fees, at the hearing you must prove that your ex-spouse had sufficient income and/or assets to comply with the court's order or judgment. Your ex-spouse has the right to remain silent, and therefore you cannot compel him/her to testify or to bring documents. He/she is permitted to remain silent. You have to use other means than his/her testimony to prove your case; you cannot count on your ex-spouse to say anything

For most violations, it is obvious that the violation was willful. For example, if you have a restraining order, and your ex-spouse beats you up, that is certainly a willful action. "Willful" is the equivalent of "intentional" or "malicious." An example of a violation that would not be "willful" would be a parent's return­ing the child late after visitation when the parent's car had a flat tire, and this caused the lateness. You have to prove not only a violation, but it has to be clear to the court that the violation was a purposeful ignoring of the court's order or judgment. (Item 3 in the OSC re contempt form states that the disobedi­ence was done "willfully," and this is usually all you need to state about willfulness in your papers.

Usually there are two good ways to prove that your ex-spouse had the ability to make payments. First, you can serve a subpoena duces tecum on his/her employer, requesting copies of pay stubs and W-2 forms. Second, if you know where he/she banks, you can subpoena bank statements to show he/she had money in the bank at the time of the contempt. The subpoena for the bank must be accompa­nied by a Consumer Notice and all these papers must be served on your ex-spouse by mail at least 15 days before the hearing. Doing both the subpoena on the employer and the subpoena on the bank is recommended. You will need to have some third person serve these subpoenas’ and fill out the proof of service form.

You will need personally to accompany the person who serves the subpoena and explain to the employer and to the bank that the personal appearance of the custodian of records in cour on the day of the hearing will be necessary. In most cases, the employers and banks just mail the records to the person who has served the subpoena. However, in the case of a hearing of an OSC re Contempt, the mailing of records may not be sufficient, and you need the witnesses to come to court. On the day of the hearing, before the case is called, you have to find out if the witness is really in court, and if they have failed to appear, you will have to explain the problem to the judge and ask for a continuance upon showing the judge proof of service; you will also have to ask the judge to issue a bench warrant for the custodian of records to obtain their presence in court. This will not be done without a valid proof of service. (Item 3b of the OSC re Contempt states, “Citee was able to comply with each order when it was disobeyed.” Usually, that is all your papers have to say about ability to obey the order; it is the proof in court that is complicated.)

If the violation occurred more than three years ago for a support order or more than two years ago for other types of orders, the statute of limitations has run, and the person cannot be convicted of contempt although other remedies may be available.

You need to be very clear at the hearing in proving all four "elements" of contempt as listed above. You need methodi­cally to prove all four elements for every single violation. Once that is done, your ex-spouse will have his/her chance to rebut your proof (to show that your proof is not really correct). In other words, he/she will be allowed to offer excuses. When he/she has testifies, the right to remain silent is given up, and you can then ask questions, that is, you can cross-examine your ex-spouse, and he/she must respond. You don't want to get into an argument in front of the judge, but you are entitled to ask questions if you think that is necessary. It is best to write out in advance the exact questions your need to ask your spouse. Otherwise, you will find yourself snarled up in court.

The judge will then rule on the contempt, usually announc­ing a decision as to each violation separately. You should be warned that the judges are very reluctant to find anyone in contempt. This is very frustrating when you have struggled to obtain your order or judgment, and now your ex-spouse is flagrantly ignoring your hard-won order or judgment, as if it meant nothing. Not only that but if you have children, the judge may get angry with you for continuing to fight with your ex-spouse. The judges all regard it as harmful to the children when parents fight. On the other hand, some "contemptuous" actions (violations of a court order) are so harmful to the child(ren) that you have no choice but to try to enforce your order. Also, if you really need the support, you may have to continue to fight for your support. The judges are more likely to find contempt when support is involved than when more personal things such as custody and visitation are involved. When a parent has paid zero support during a period when he/she had proven employment, the court is quite likely to find a contempt.

The judge can impose various punishments on your ex-spouse if he/she is found in contempt. Community service and/or a jail sentence of five to ten days per violation is possible, and each month in which no support was paid can be treated as a separate violation. At the end of a hearing involving particularly willful repeat violations, judges have been known to have their bailiffs immediately take the accused into custody, sitting him/her in the jury box in the courtroom until transportation to the jail can be arranged. However, this is rare, to say the least. More likely is the judge suspending sentence and saying that if there are no further violations, and any arrearages of support are paid by a certain date, he/she will not impose any sentence. Also the judge can award attorney fees or impose any other punishment he/she believes to be proper.

After the judge announces the decision, you have to prepare a written Order re Contempt. You then have to obtain the judge’s signature on that order in the same manner as on the Order After Hearing discussed. Unfortunately, if you have a very hard-headed ex-spouse, they may continue to disobey even after being found in contempt, and you will have to take further steps to obtain compliance, such as filing a second OSC re Contempt.