Contempt Proceedings and Garnishments are Two Common Enforcement Mechanisms
Despite being called a Final Judgment of Divorce, you might soon find that the fight is not always over when you receive that coveted order at the conclusion of your divorce case. The Final Judgment of Divorce terminates your marriage and sets out each parties’ respective rights and obligations. In many cases, recently divorced parties follow the order with little issue. However, some former spouses refuse to follow the Final Judgment of Divorce for various reasons. Whether your former spouse will not provide property awarded to you, pay spousal or child support as ordered, or follow some other aspect of the Final Judgment of Divorce, the law provides for various methods to enforce your Final Judgment of Divorce. Two of the most common enforcement mechanisms are contempt proceedings and garnishments.
Initiating Contempt Actions by Filing Petitions for Rule Nisi
A court has the inherent authority to enforce its orders, and that authority allows it to compel compliance with its order or to punish non-compliance by imposing significant sanctions. Much like your initial divorce case, a contempt action begins with the filing of a civil lawsuit and the payment of a filing fee. The petition used to initiate a contempt action is called a “Petition for Rule Nisi.” Sometimes, the filing of the contempt proceeding can be enough to encourage your former spouse to comply. If the threat of a contempt proceeding is insufficient to ensure compliance, an enforcement proceeding will typically progress like your initial divorce case. You will likely undergo the discovery process and then advance to the point of trial if a resolution of the issues can’t otherwise be reached. At trial, you would have the burden of proving that your former spouse willfully violated a lawful court order.
Contempt Sanctions May Be Used to Punish or to Coerce Compliance
If the court finds that your former spouse willfully failed to follow its orders, he or she can be found to disregard in contempt. The court can impose a sanction to either punish the party or compel compliance with its prior orders. The court’s contempt powers are broad and include the authority to incarcerate a contemnor. In the case of civil contempt, the court could order your former spouse to be incarcerated until he or she purges himself or herself of contempt by doing what was ordered in the Final Judgment of Divorce. In a case of criminal contempt, the court has the authority to punish the violator by fines not exceeding one hundred dollars ($100.00) and by incarceration not exceeding five (5) days for each separate finding of criminal contempt. In addition, if the court finds a party to be in contempt, the court has the discretion to order that party to pay an amount towards the attorney fees and court costs incurred by the party having to seek compliance. Needless to say, the court’s contempt powers are far-reaching and can be very effective deterrents to ensure compliance with the Final Judgment of Divorce.
Garnishing Child Support, Alimony, or Property Awards
Unfortunately, some former spouses do not meet their support obligations despite having the ability to do so. In addition to contempt proceedings, the garnishment process can also be very effective when collecting monied judgments from your former spouse. Each missed payment of child support or alimony constitutes a separate judgment that is immediately enforceable and which accrues interest. In a situation where your former spouse has money in the bank but has missed support payments, a garnishment provides an opportunity for you to collect that money in a more streamlined and less costly process than a typical contempt proceeding.
The Garnishment Process in Alabama
Generally speaking, garnishment is the process used to reach the money of a defendant that is held by some third party in an effort to satisfy an existing judgment. A garnishment begins with the issuance of a document known as a “process of garnishment” and the payment of a minimal filing fee. The process of garnishment is served on the third party, and notice is then given to your former spouse that the garnishment has been filed and served on the third party. If the third party is holding funds for the former spouse, the third party is required to file an answer with the court letting it know how much funds it has in its possession. If your former spouse disputes any aspect of the garnishment or the garnishee’s answer, a hearing would likely occur. Eventually, the third party will be required to pay into court what funds it has in its possession that can be used to pay the judgment, and those funds will then be paid to you.
Consultation with an Alabama Divorce and Family Law Attorney
If your former spouse is not complying with a court order and enforcement of that court order is desired or if you have been served with a Petition for Rule Nisi which alleges that you have willfully failed to abide by an order or judgment of the court, contact one of the attorneys at Boyd, Fernambucq & Dunn, P.C. here to schedule a consultation to determine what rights, obligations, or defenses you may have.