As always, before reading my post please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles apply only to the Commonwealth of Virginia.
Introduction
One of the harshest realities that family law clients face is that just because a court orders your spouse, ex-spouse, significant other, etc., to do something doesn't mean he or she actually will - and unless you take action, their violations will go entirely unpunished. The result of this is that I often get clients come to me with an old order that's been violated for years and ask me why the court hasn't done anything - when in reality, they also have done nothing, and at this point it may be too late.
In today's blog post, I will discuss what to do if your ex is violating a family law order, some considerations to think about, and what can happen as a result of your actions.
Orders vs. Judgments
I have covered before the difference between orders and judgments - including the basic rule that a judgment does not require anyone to do anything, while an order does. I believe I have also mentioned that in a family law context, almost all orders made by the court are orders, not judgments. As a result, if you are dealing with a family law ruling - custody/visitation order, an order dividing property, ordering support to be paid, etc., the odds are you are dealing with an order that actually requires each party to take certain actions. Additionally if you had a property settlement agreement that was incorporated into a court order, you are also obligated by order to follow that agreement. This means failure to follow the order is contempt of court, and as a result the violator can face some serious penalties as long as the right procedures are followed.
Orders are not self-executing
That all being said, orders do not take care of themselves. If the parties violate an order, nothing happens unless the other party does something. There's a practical reason for this - the court simply cannot police its own orders, but also a logical one - if you both don't like an order and can agree to do something differently, why should the court interfere with that agreement?
The result of all of this means, again, if your ex violates the order, it's on you to do something about it - it won't just take care of itself. There is a slight exception that if your support is being collected by DCSE, DCSE might take action, but it is no way guaranteed that they will.
So, what should you do?
Realistically, the first step to take is to go to an attorney. There's a decent chance you will get an award of your attorneys' fees as a result of the action you take, but even if you don't, an attorney is going to know best how to compel your ex to comply. The most common approach is to request that the court issue a "Rule to Show Cause." This is an Order that requires the other party to appear before the court and defend their actions, and if they cannot do so, they will be held in contempt of court.
What happens if they are found in contempt?
So, if your ex is found by the court to be in contempt, the court has a wide range of options at its disposal. It can enter a monetary judgment against your ex (meaning you can then garnish his or her wages to collect what you are owed), it can order your ex to pay fines, it can even sentence your ex to jail time. Most violations of court orders have a maximum sentence of ten days, but failure to pay support can result in a sentence of up to a year in jail. Frequently if someone is sent to jail for non-payment of support, the court will set a "purge" amount - an amount less than what they owe, but still a significant amount - that they can pay you to at least get out of jail. You'd be shocked how many people who "don't have the money to pay" find the purge money all of the sudden when facing serious jail time.
Typically, you will also be awarded your attorneys' fees in pursuing the contempt charge, and continuing violations of the order can be re-raised for new contempt charges since continuing to violate the order would be considered new violations.
What if they don't show up?
Of course, all of this depends on their showing up for court on the Rule to Show Cause. If they don't show up, however, and they were served personally with the Rule (rather than served via a family member or posting on their front door), then the court can find them summarily in contempt based on just your evidence. Moreover, the court can issue a "capias," which is a warrant authorizing their immediate arrest to be held until they answer for the charges raised.
Right to counsel
An important side note is to understand that, as a contempt proceeding is quasi-criminal and your ex faces potential jail time, if your ex actually is indigent, he or she will be entitled to have the court appoint an attorney for them. As a result, you cannot use a Rule to Show Cause to take advantage of the fact that your ex does not have a lawyer.
Some considerations
In general, contempt of court is a serious charge, and courts are not going to have patience for someone being brought in front of them for petty violations. As a result, if your ex shorted you $5 on support one month, that's probably not worth a Rule. Nonetheless, a series of petty violations may add up to a not so petty violation, and then you can bring a Rule for all of them.
Another consideration is that support has a statute of limitations. Support automatically becomes a judgment when unpaid, and in 2011 the Virginia Supreme Court ruled that this meant that the 20 year statute of limitations on collecting judgments applied. As a result, if unpaid support is more than 20 years old, you are out of luck.
Additionally, an order becoming impossible to follow is also a defense against contempt. So, if you don't go after your ex until they are broke and unemployed, or until the car they were supposed to sign over to you has been destroyed in a wreck, you may be out of luck anyways.
The end result is, while you probably should let minor violations go, when a not so minor violation occurs, you really should not sit on your rights - you need to take action right away.
Conclusion
There are few things more frustrating than sitting there, doing what you are supposed to do, while your ex flagrantly refuses to do the same. Even more frustrating, though, is that if you do nothing about it, your ex will get away with it. A lawyer will have the best idea, however, of how to compel your ex to comply. If you have a family law order that your ex is violating, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
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