Enforcing a divorce decree when your ex refuses to follow it
- posted: Jan 18, 2019
After divorce, you may run into a common situation where your ex does not follow the terms of the divorce decree. The divorce decree or custody order is a legally binding court order, and failure to follow it is a violation. The party violating the order may be subject to both criminal and civil penalties. However, it is important to remember that a contempt action is a mechanism that applies pressure on your ex to follow the order, and is not meant to be a method of punishment.
Why would you want to start a contempt action?
For example, during your divorce you may have agreed that your ex could keep the home, but that he or she had to repay you for the equity you contributed by helping make the payments during the marriage. After being divorced for five years, your ex has not made a single payment to reimburse you, or has not yet refinanced the home out of your name since the divorce as agreed. Perhaps your ex is supposed to pay half of the children’s extracurricular activities or daycare, and is not holding up their end of the agreement. In situations like this you would want to look at a contempt action to pressure your ex into doing what you both agreed to when the marriage ended.
Grounds for contempt of court in Georgia
In Georgia, to put someone to account for failure to follow a court order, you bring a contempt action. In order to do that, you first have to have standing. Standing in this situation means that you were a party to the agreement, so as an ex-spouse and parent of the child, the requirement is met.
Second, you will need to have evidence that your ex did not follow the terms of the agreement. If he or she has not been paying their share of daycare or medical costs, you would produce the receipts showing you pay the whole bill. If you have child support owed to you, you would produce the record of payments from the state showing that you are owed arrears.
The third requirement is that you will need to prove through evidence that your ex willfully defied the order of the court. In other words, your ex had the resources or means to pay that part of the medical bill, daycare, or the ability to get the house refinanced out of your name, but has just chosen to not do so.
Defenses to contempt
A contempt action is usually initiated by your attorney, in the same court where the order was issued. There are a number of defenses to a contempt action, including that your ex did not have the means to pay, that the two of you had verbal agreement that he or she relied upon, or that your divorce decree was too vague and unclear. These are all topics you should discuss in detail with your family law attorney.