Long Island Family Law and Mediation Blog
An order to pay child support or maintenance, that is part of a divorce judgment, can be enforced by filing a violation or contempt petition in the Supreme Court after the entry of a Judgment of Divorce. If exclusive jurisdiction was not reserved in the Supreme Court for dealing with future matters involving child support or maintenance, then either the Family Court or the Supreme Court could be utilized to bring the violation or contempt application. People for which the order was initiated in the Family Court for spousal or child support can bring their violation petition in the Family Court. When there is a choice between the Family Court and Supreme Court, there might be different reasons or motivations for choosing either one. For example, a party might choose the Supreme Court because they also want to discuss enforcement of a property settlement or child custody issues in the same case. The Family Court separates support issues from child custody issues into different cases, which are handled in different court rooms at different times. Also, the Family Court does not have jurisdiction over a property settlement. Other parties might choose the Family Court as they want to focus on one issue at a time or to avoid the more detailed paperwork associated with the Supreme Court. As a New York City and Long Island Child Support Lawyer that handles cases all over the area, I regularly appear in both the Supreme and Family Courts.
Usually, the contempt motion is brought by what is called an Order to Show Cause when it is done in the Supreme Court. Typically, the structure of an Order to Show Cause starts with the order pages, which are signed by the Judge, directing the other side to come to the court and show cause why an order should not be issued punishing the person for failure to pay the maintenance, child support or other requested relief. After the order pages, an affidavit from the client that outlines the reasons for making the motion and what they would like the court to do usually follows the aforementioned order pages that were signed by the Judge. After the affidavit from the client, in most instances, an affirmation from the attorney follows. The affirmation from the attorney contains legal arguments and reasoning to support their client’s position. Any exhibits in support of the motion are attached after the attorney’s affirmation. The other side is given an opportunity to submit opposition papers to which the moving party may submit a Reply. A Sur-Reply from the person defending the motion occasionally is made which might be considered by the court. Sur-Replys are the exception rather than the rule and not always permitted by the Court.
Family Court, in most cases (but not always), is less paperwork intensive and a more streamlined process. A petition that details the violation is submitted and signed by the client and their attorney if they have one. The court then issues a summons requiring the respondent to appear in court. The law provides that if there is a support order that has not been paid, there is a presumption that there is a willful violation. The burden then shifts to the other side to show that the violation was not willful. Willfulness means the ability to pay and the failure to do so. An important task of the attorney for someone accused of failing to pay child support is to show that the violation was not willful, if in fact the support order was not paid. Therefore, the financial ability to pay is a big issue in hearing on contempt motions or violations. If loss of employment is at issue, the payor needs to show that the job loss was due to no fault of their own and that they have been making diligent efforts at securing replacement employment to no avail. The other side might argue that diligent efforts have not been made or that the loss of employment was the payor’s fault.
Cross-motions to vacate the order, for a downward modification, or an upward modification request from the recipient of support all might also be made in connection with the case. Usually, all the relief would be heard together at the same hearing. Modifications and Cost of Living Adjustments are discussed in some of my other blog entries and web pages. I am confining the discussion in this article to the failure to pay support aspect of cases. Support violations are usually settled by some type of arrangement on consent of both sides of the case with the approval of the court. However, some cases do not settle and must go to a hearing.
If there is a hearing and it is found that there is a violation, the court will issue a money judgment for the unpaid support among other remedies. An income deduction order can be made. The court can suspend the drivers and professional licenses of the payor. The court can order the payor to participate in work activities in certain instances. In cases of willful violations, the court may order up to six months incarceration.
Support violations are a serious matter so it is recommended to obtain solid legal representation whether bringing or defending against the motion. Feel free to call about your free initial consultation regarding support violations. It would be our pleasure to speak with you about it.