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Enforcement And Contempt Actions

Experienced Westport Attorneys enter enforcement orders on behalf of Fairfield County Clients: Visitation, Custody, Child Support, Alimony

Non-Compliance with Court Orders by a Spouse

Non-Compliance with Court Orders and Court Ordered Divorce Agreements by a ex-spouse is perhaps one of the most frustrating scenarios with which you may have to content during the pendency of your divorce and after your divorce has been accepted by the Court and finalized.

Common Situations:

  • Non-payment or late-payment;
  • Non-compliance to parenting schedules;
  • Failure to disclose documents (e.g. tax returns, bonuses);
  • Failure to pay tuition payments;
  • Un-reimbursed medical expenses,
  • Failure to maintain insurance policies, etc.

Your Alternatives:

  • Motion for Contempt;
  • Motion to Compel;
  • Negotiated or facilitated settlement;

Understanding Contempt:

You and your spouse are duty bound to comply with all court orders including, but not limited to: scheduled visitations, child support payments, alimony payments, tuition payments, medical reimbursements, document and information disclosures (e.g. tax filings and bonus payments). Any person failing to comply with a court order can be charged with contempt. A person found guilty of contempt can be ordered to comply with the court orders, pay fines, face wage garnishment, or even receive jail time.

Choosing the Right Enforcement Strategy

While the option to file a Motion for Contempt or Motion to Compel is available and Needle | Cuda can aggressively pursue these options at any time, it may not always be the best or most efficient way to solve your problem. It is important to consider that some courts can shy away from contempt rulings. Or, that it may be prudent in the bigger picture to avoid the potentially serious penalties for your ex-spouse. Another consideration might be that your spouse has experienced substantial change in financial circumstances that could support a modification to the court order and therefore a reduction in his or her payment obligations to you.

Needle | Cuda has been successful in resolving and settling delinquent alimony payments, unpaid child support, non-compliance with visitation and parenting schedules, and many other divorce related enforcement issues for clients throughout Fairfield County, including, Greenwich, Westport, New Canaan, Wilton, Darien, and Fairfield. Our attorneys will work closely with you to determine an enforcement strategy that best fits your situation whether it be through a finessed negotiation or litigated contempt action.

 

Ex Parte Restraining Order – Frequently Asked Questions and Answers

An emergency ex parte application for custody is an application that is filed with the court asking for an order to be issued without a full-hearing on the issue, based only on the representations included in an affidavit attached to the application. It is only used in extreme situations when imminent physical or psychological danger threatens the physical and/or emotional safety and welfare of a child or children. If the judge issues an emergency ex parte order based on the application, the judge will schedule a hearing where both parties have the opportunity to appear within 14 days and the other party must be served at least 5 days before that hearing.

Even if the application is denied, the judge will enter a hearing date for the underlying allegations and claims for relief sought in the ex parte application.

Emergency ex parte applications for custody can be filed in emergency situations when an immediate and present risk of physical danger or psychological harm to the child or children exists.

Produce tangible evidence that demonstrates that your child or children are in immediate, imminent physical and/or psychological harm that threatens their safety or well being.

Examples of serious custody or visitation violations that may rise to a level that a family judge deems are not in the best interest of the child:

  • Frequently missed visitation times or exchanges (chronic and/or harmful patterns);
  • Consistent tardiness or early arrivals (that create disruption to the child’s routine and normal function);
  • Persistent disturbances designed to intentionally disrupt your visitation and/or scheduled time;
  • Refusal to take the kids to the doctors, school, therapy, etc.;
  • Verbal or physical abuse of the child;
  • Alcohol or substance abuse around the child;
  • Keeping the child with you for a longer visit than what is provided for in the custody or visitation order;
  • Failure to inform the other parent of the child’s whereabouts;
  • Taking the child on a vacation or trip without prior approval;
  • Taking the child out of the state or out of the country without approval (can lead to federal and international issues);
  • Allowing an unauthorized person to care for the child;
  • Attempts to interfere with the relationship between the child and the other parent;

By law, child custody arrangements are determined based on what is deemed to be in the best interests of the child.

Connecticut Family Court Judges must consider a broad range of statutory factors when determining what is in a child’s best interests and their formulation of the related custody orders. Judges have an enormous amount of discretion in weighing and balancing statutory factors when forming their court orders, which sixteen (16) factors include:

(1) The temperament and developmental needs of the child;

(2) the capacity and the disposition of the parents to understand and meet the needs of the child;

(3) any relevant and material information obtained from the child, including the informed preferences of the child;

(4) the wishes of the child’s parents as to custody;

(5) the past and current interaction and relationship of the child with each parent, the child’s siblings and any other person who may significantly affect the best interests of the child;

(6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders;

(7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;

(8) the ability of each parent to be actively involved in the life of the child;

(9) the child’s adjustment to his or her home, school and community environments;

(10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child’s family home pendente lite in order to alleviate stress in the household;

(11) the stability of the child’s existing or proposed residences, or both;

(12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child;

(13) the child’s cultural background;

(14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child;

(15) whether the child or a sibling of the child has been abused or neglected; and

(16) whether the party satisfactorily completed participation in a parenting education program.
Family Court Judges tend to favor orders that allow both parents to co-parent, and both actively participate, but this does not always mean equally.
Parents can negotiate and enter into child custody arrangements and parenting plans by agreement. In most cases, far better results are achieved by parents who manage to negotiate a child custody agreement/parenting plan through compromise than to go to trial and have a family judge decide.

A temporary custody order is a legal decision by the court to award physical and legal custody of a minor child to an adult who may or may not be the child’s legal parent for a set period of time. Temporary custody orders do not turn final and are only temporary. These may be ordered by the court pendent lite (during the case), or following a granting of an ex parte application (until the hearing on the ex parte application is heard).

Temporary custody orders do not become final orders without a new order from a judge. However, once a temporary custody order is put in place, it lasts until a date stated in the order, or until a judge makes a new custody ruling.

Yes, Police can enforce Child Custody Orders, but are reluctant to do so.  Generally, police officers avoid getting involved in family matters unless the custody or visitation violation rises to the level of a crime like child abuse, abduction, or kidnapping.  What happens when you call the police will vary greatly from town to town and which officers show up at your house.

When it comes to the health and safety of your kids, you should always trust your instincts. If by way of example, you have legitimate concerns for their well-being in the care of the other parent based on some prior knowledge or statement, you should call the police.

If your child or children are in immediate danger, CALL 911.

Depending on the situation, the officer may simply direct you back to court, but if you end up in front of a judge, you will at least have the police report as evidence to help support your case.

A Child Custody Agreement that has been approved by a Connecticut family law judge and entered as an order of the court is legally binding on the parties involved.

If a parent violates a court-ordered or agreed-upon parenting plan, they run the risk of being held in contempt of court upon a finding of a willful violation of a clear court order. The parent who violates the order can face serious consequences. Always remember, the Court’s primary directive is to determine and protect the best interests of the child.

With all that said, there are three ways to deal with and pursue enforce a Child Custody or Visitation Order:

COMPROMISE AND COMMON SENSE (negotiation with the help of a skilled family lawyer and perhaps some form of limited scope mediation or similar negotiation process);

POLICE INTERVENTION;

MOTION TO ENFORCE / MOTION FOR CONTEMPT (which seeks to enforce the order and/or hold the other parent in contempt of court for violating the court order);

Document and Gather Evidence of Violations

Keep a written record of all violations in a calendar or journal. Include dates, times, and detailed descriptions of each problem, event, problematic interaction. Timestamped social media posts, pictures, and texts can also be helpful. Keep copies of any police reports or other papers, including copies of emails and/or phone records.

 

Frequently Asked Questions and Answers – Post Judgment Modifications to My Divorce

Only certain provisions, in limited circumstances, are available can be "revisited" with respect to a Connecticut Divorce.  That said, there is a big difference between a divorce modification, "opening" your divorce and a Divorce Appeal.

Generally, a divorce can only be "opened" if there was fraud or there failure to fully disclosure assets but it’s very rare that a divorce is reopened.  Motions to Open typically will revolve around omissions of facts and information.

By contrast, a Appeal (Divorce) alleges that the trial judge made a legal mistake and the ruling should be reversed or reconsidered.

Assuming a modification is sought with respect to a specific (permissible) provision in your agreement and the circumstances/context meet statutory requirements, a motion must be filed with the Connecticut Family Court to start the process.  This practice areas is broadly referred to as Post Judgment Modification.

A variety of motions are available to be considered--depending on the provision that you seek to change and/or affect and if you meet statutory requirements; these include:

  • Motion to Modify;
  • Motion for Contempt;
  • Motion to Open;
  • Motion to Compel;
  • Motion to Set Aside;

Knowing which Post Judgment motions to file and under what circumstances requires a depth of knowledge and experience about Connecticut family law and with the Connecticut courts.  These matters are best handled by experienced divorce and family law attorneys.

A Motion to Modify (Divorce) seeks to change or revise a single provision or several provisions of a Divorce Decree, such as the amount set for child support or alimony.

When a divorce is finalized in Connecticut it is called a Divorce Decree.  That Divorce Decree is  a formal court order; it is "final"--unless and until the court rules in favor of a petition of modification and enters a new ("revised") order.

Note that there are thresholds/requirements/guidelines relating to Motions to Modify that are important to highlight:

  • Custody, visitation and child support are always modifiable.  That said, a substantial change in circumstances must be demonstrated for the related motion(s) to be considered;
    • Specifically, with respect to custody/visitation, a judge will only consider a modification request if at least 2 years have passed since the last order was entered or significantly modified. A judge is generally more "open" to  modifying a custody order when the child or children are at least 2 years old.
  • Alimony (also known as spousal support) can be modified as long as 1) the alimony award is not non-modifiable, or 2) your right to alimony was not waived by way of your divorce settlement. If the parties agreed that the alimony award would be non-modifiable, then neither spouse may seek a modification, regardless of the change in circumstances.  If one, or both, parties waived their right to future spousal support obligations in their divorce decree, then no matter how dramatic a change in post-divorce circumstances they experience, that party cannot seek alimony in the future.
    • [NOTE: As a result, spouses’ separation agreements and judges’ decisions often contain a nominal alimony payment like $1.00 to preserve the right to modify alimony — By including $1.00 of alimony, the court is able to modify alimony if it becomes appropriate down the road after a finding of a substantial change of circumstances.]
  • Property/Asset Division is non-modifiable;
  • No statute of limitations or time expirations;

Generally speaking, there is no statute of limitations or expiration of the ability to seek modification to your Divorce Decree.  The core requirement is that a material change in circumstances has occurred.

That said, there are notable exceptions:

Alimony may be non-modifiable in some situations.

Sometimes divorcing parties will waive the right to modify alimony in their divorce settlement.  And so, if it was agreed that the alimony award would be non-modifiable in your divorce, then neither spouse may seek a modification down the road, regardless of the change in circumstances.  If one, or both, parties waived their right to future spousal support obligations in their divorce decree, then no matter how dramatic a change in post-divorce circumstances they experience, that party cannot seek alimony in the future.

[NOTE: As a result, spouses’ separation agreements and judges’ decisions often contain a nominal alimony payment like $1.00 for the purpose of preserving the right to modify alimony — By including $1.00 of alimony, the court is able to modify alimony if it becomes appropriate down the road after a finding of a substantial change of circumstances.]

Decisions related to Property/Asset Division are non-modifiable.

Motions to Modify (Divorce) generally most frequently revolve around custody, the terms of a parenting plan, child support,  and alimony.   Property/Asset division decisions are non-modifiable.

The most frequent drivers for Motions to Modify (Divorce) include:

  • The opportunity or need to relocate (out of state or out of the country);
  • Remarriage or  Cohabitation of your ex-spouse;
  • Changes in income and job status resulting substantial changes in income (both increases and decreases);
  • Unpaid or delinquent Child Support;
  • Unpaid or delinquent Alimony;
  • Unpaid or delinquent medical, insurance, and/or education related expenses;
  • Illness (physical and mental);
  • Short-term and long-term disabilities resulting from a accident;
  • Contested healthcare/treatments relating to your child or children;
  • Contested Religious decisions relating to your child or children;

Examples of substantial changes in circumstances that may support a petition for alimony modification in Connecticut include:

  • A new job, a significant raise, or increase/decrease in compensation;
  • Changes in assets;
  • Illness, mental illness, and other short and long-term disabilities;
  • The loss of child support or change in child custody;
  • Remarriage or Cohabitation;

Examples of substantial changes in circumstances that may support a petition for modification of child custody/visitation include:

  • A long-distance relocation opportunity/request arises;
  • Frequent or habitual non-compliance with existing visitation schedules and/or parenting plan;
  • Situations involving physical abuse, sexual abuse, and/or domestic violence;
  • Deterioration of a child’s mental and/or physical health;
  • Sharp declines in performance at school and/or anomalies in a child's educational development;
  • The primary/custodial parent develops a health or medical condition making it impossible to adequately care for the child;
  • Arrests, criminal matters, incarceration;
  • Substance abuse and patterns of addition by parent that endanger a child health and safety;
  • The onset of a mental or terminal illness of a parent (and related hospitalization or commitment);
  • The death of a parent;

No matter your situation, the court will only approve an order modification when it's in the best interest of the child.

And, it is important to note that Connecticut family court judges have broad discretion in the determination of and rulings on these matters.

Under Connecticut law, if one party shows that there has been a substantial change in circumstances , the court, after a hearing, may continue, set aside, alter, or modify the orders related to your divorce.

In deciding such matters, the court must consider  statutory factors to determine what modifications, if any, are appropriate.

Generally, this applies to provisions relating to Alimony, Custody/Visitation, and Child Support.

Court orders relating to Property/Asset Division are non-modifiable.

In the event that your ex-spouse refuses to follow the terms of your Divorce Decree (a court order), filing a Motion for Contempt is a procedural mechanism that can be used to remedy the situation.

A vast majority of people, do in fact, follow court orders without issue, but sometimes an ex-spouse comes along that does not comply (e.g. your ex-spouse doesn't or stops paying alimony and/or child support; your ex-spouse routinely violates the visitation schedule or the terms of you parenting plan;  healthcare and extra-curricular expense are disputed or not properly reimbursed;  there is a failure or delay in following through with some aspect of your property division arrangement)

 

There are two types of Motions for Contempt in a Connecticut divorce:

  • Pendente Lite Motion for Contempt;
  • Post Judgment Motion of Contempt;

The anatomy of divorce has two procedural phases:

  • Pendente Lite (the period during which your divorce is pending in the family court);
  • Post Judgement (the period after your divorce has been finalized by the family court and entered a Divorce Decree (court order)

Note that during the Pendente Lite phase of your divorce, Automatic Order apply in the state of Connecticut that protect the status quo related to your finances, property and your children (e.g. property sales/transfers are prohibited; re-mortgaging your home; beneficiaries on life insurance policies cannot be changed; health insurance cannot be cancelled, etc.)  Automatic orders prevent either spouse from taking unilateral actions with respect to finances, property, and children without mutual consent.

A Motion for Contempt seeks a ruling from the Family Court that finds your spouse in contempt of the prior court order.  A Motion for Contempt requires that the requesting party meet a specific standard call the burden of proof.

Accordingly, for a judge to find your ex-spouse in contempt, the petitioner must successfully demonstrate (with clear and convincing evidence) the following:

  • A clear and unambiguous court order in place;
  • The defendant violated that order;
  • The defendant violated the order acted willfully;

Additionally, you must clearly present and explain the relief/remedy that you are seeking.

The consequence of being held in "Contempt" in Family Court can include:

  • Payment of the opposing party's Attorneys Fees - A party found in "Contempt" can be required to pay opposing party's attorneys fees.
  • Jail Time - Judges also have the discretion to impose jail time.
  • Wage Garnishment - A violators wages may be garnished to satisfy the judgement.

Generally, a divorce can only be "opened" if there was fraud or a failure in one party's financial/property disclosure--but it’s very rare that a divorce is reopened.

In some situations, new evidence, facts, and information can surface after a divorce has been finalized.  In these situations, a Motion to Modify may not offer a sufficient remedy.  When that happens a Motion to Open is one of the procedural vehicles that can be used so that the court can reconsider any and all questions originally raised and impacted by the introduction of the new information.

Generally speaking, a Motion to Open in Connecticut must be filed with respect to a divorce within (4) four months of the date of judgement.  There are further exceptions when a judge finds "good and compelling reason" or the parties mutually agree to waive this requirement.  Other exceptions to the (4) month limitation include: Fraud, the Absence of Consent (including Duress), and Mutual Mistake.

Motions to Open based on Fraud represent a rapidly evolving area of family law in Connecticut.  Such matters are best handled by an experienced divorce and family law attorney.

A Motion to Open due to Fraud presents a very, very high bar.  The Fraud must rise the level that there is a reasonable probability that the result of a new trial would be different.  Additionally, there must be no unreasonable delay by the party bringing the motion following the discovery of the fraud.  And lastly, there must be clear proof the the Fraud and/or perjury.

A Motion to Compel is a request to the court to require an "involved" party to take a specific action.   After a divorce judgment, it is most often used to require a party to that judgment to comply with court’s orders, although a Motion to Compel may be used for other purposes.

In highly contested divorces, it is not uncommon for divorcing parties  to withhold critical evidence, offer vague testimony, file objections to discovery that slow down the process and create a financial burden for their ex-partner.

The behaviors of  these "bad actors" can include: lying about net worth; refusal to produce important personal financial documents like tax returns and bank statements;  obstructing and delaying access to inspection of property and financial/accounting records fcr closely held businesses (e.g. family businesses);  "low balling" the value of property and other complex or exotic assets;  hiding an extra-marital affair and related expenses.

A Motion to Compel "asks" the family judge to order one part to produce the opposing die with evidence related to the divorce which may include:

  • Production of tax returns and related documents (e.g. W-2, 1099's)
  • Production of bank statements, brokerage statements, and other financial holdings;
  • Production of financial records related "owned businesses"  (e.g. profit and loss statements, balance sheets, ledgers, accounts payable records, and distributions, etc.)
  • Deposition testimony;
  • Request for admission of undisputed facts;
  • Personal communications (e.g. emails, texts, posts, photos, and videos)
  • Title to real property and automobiles ;
  • Property appraisals;
  • Insurance policies;
  • Access to real property for inspections and appraisal;
  • Access to exotic property for inspection and appraisal (e.g. art, wine, vintage car collections, etc.)

Yes, prior to filing a Motion to Compel the  petitioner is required to have followed the rules of discovery procedure (in Connecticut), including complete fulfillment and compliance with the petitioner's own production requirements for discovery.  Judicial intervention in the form of a Motion to Compel can only be sought if and when the the Connecticut Practice Book procedure fails.

That said, Motions to Compel are generally discourage.  Prior to filing a Motion to Compel, it is a good idea to make every reasonable effort to resolve outstanding discovery dispute.

A Motion to Compel seeks an ruling from a family judge that results in an court order the compels one party to produce evidence to the opposing party that is related to the divorce action.

  • Section 13-14 of the Connecticut Practice Book authorizes Connecticut state
    courts to issue sanctions for failing to comply with discovery in any of the following ways:
  • Failing to answer interrogatories, or to answer them fairly;
  • Intentionally answering interrogatories falsely or in a manner calculated to mislead;
  • Failing to respond to requests for production;
  • Failing to respond to requests for disclosure of the existence and contents of an insurance policy or the limits thereof;
  • Failing to submit to a physical or mental examination;
  • Failing to comply with a discovery order made pursuant to Section 13-3 of the Connecticut Practice Book, i.e., the rule addressing disclosure of assets when a prejudgment remedy is sought;
  • Failing to comply with Section 13-15 of the Connecticut Practice Book, i.e., the rule addressing a party’s continuing obligation to
    disclose;
  • Failing to appear and testify at a deposition duly noticed; or
  • Failing substantially to comply with any other discovery order
    made pursuant to Sections 13-6 through 13-11 of the Connecticut
    Practice Book;

In practical terms, a family judge can order a party t produce evidence, including:

  • Tax Returns and documents related to income  and earnings.
  • Bank Statements, Brokerage Accounts, and other complex financial holdings (private equity interests, hedge fund holdings, cryptocurrency, etc.)
  • Personal communications (emails, texts, posts, photos, videos, and other electronic "files";
  • Title documents related to real property and automobiles;
  • "Sworn" responses to interrogatories;
  • Deposition testimony;
  • Requests for admission of undisputed facts;
  • Access to property for inspection, appraisal, valuation;

Sometimes, even after the family court issues an order to compel production of discovery items related to your divorce by your spouse, your spouse may continue to ignore the order and fail to produce.

In such instances, a family judge may impose sanctions including:

  • A favorable ruling with respect to the information sought in the Motion to Compel;
  • A Default Order of the court which precludes the defendant from making any further defense in the
    case so far as liability is concerned.
  • Payment of the opposing party's attorneys fees;
  • Additional fees/penalties referred to as sanctions;
  • In extreme cases where there is willful non-compliance, the judge can impose both civil and criminal penalties;

A Connecticut family law judge can order both temporary and permanent modifications.

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