San Jose Contempt of Court Lawyer

San Jose Contempt of Court Attorney

Failure To Pay Support Can Lead to a Charge of Contempt of Court

If you have watched any legal drama, you have heard of the term “Contempt of Court”. Usually, it is in the context of our hero lawyer standing up for his client by disrespecting the judge. The Judge will yell, “you’re in contempt!” and have the court officer drag our hero off to jail. One of the definitions of Contempt of Court is, in fact, “being rude, disrespectful to the judge or other attorneys or causing a disturbance in the courtroom, particularly after being warned by the judge”.

There is another definition of Contempt of Court that is less known. “Willful failure to obey a court order.” This can be in the form of not paying alimony, also known as spousal support, or child support. A judge may punish a ruling of contempt with fines, probation, community service, or even jail time.

Areas of Divorce Enforceable with Contempt of Court Motions

Several areas are covered by a divorce agreement that is enforceable with a contempt of court motion, also known as an Order to Show Cause and Affidavit for Contempt. If there is a court order and the person has the ability to comply but chooses to disregard the order, the person may be held in contempt. These include:

• Support Orders – Violation of an order to pay spousal or child support
• Child Custody & Visitation Orders – Violating the terms of the custody and visitation orders, such as moving with a child outside the guidelines of the divorce agreement or not allowing court-ordered visitation.
• Attorney Fee Orders – Under California Law, under some circumstances, one party may be ordered to pay the attorney fees for the other party, commonly referred to as “need-based” fees.
• Property Division Orders – failing to comply with a court-ordered in-kind division of community property assets.
• Restraining Orders and Family Court Protective Orders – violation of a valid restraining order
• Failure to Comply with discovery orders under the Civil Discovery Act
• Intentional violation of a Rule of Court

The following types of order can NOT be enforced by a contempt of court motion:

• Equalization payments as part of a property division
• Marital Debt Liability Orders – failure to pay off marital debt as ordered by the court
• Sanction orders

Contempt of Court is a Serious Charge

Contempt of Court is a serious charge that is not handled lightly by the courts in San Jose, California. There is a procedure in which a person may be cited for Contempt. There must be a written court order in place. The person charged with contempt (Citee) must be aware of the order, and there has to be admissible proof that the order was willfully violated.

Once an accusation of Contempt has been filed, the Citee has due process rights that must be followed, including notice of the charge and the opportunity to be heard. The Citee also has the right to remain silent and not incriminate him/herself. A contempt of court motion is basically between the Court and the cited party since the Court is the aggrieved party.

However, in most cases, the party filing the contempt motion normally must present the evidence and conduct the hearing. The burden of proof is beyond a reasonable doubt for all components of the contempt charges and falls on the person bringing the charge to meet that burden. Once the hearing or trial starts, the rules of double jeopardy apply. This means if someone is tried and found not guilty, they cannot be accused or tried for the same offense.

Types of Contempt of Court

There are two types of Contempt of Court: Civil Contempt and Criminal Contempt.

Civil Contempt refers to the willful disobeying of a court order with the ability to still comply with the order. The consequence for Civil Contempt is that the person can be put in jail or pay a daily fine until s/he complies with the order. The consequence of Civil Contempt is not to punish the individual, but to compel them to comply with the court order. Examples of Civil Contempt include:

• Failing to return a child after the end of the person’s custodial time;
• Failure to provide documents or an asset to the other side;
• Failing to show up for a court hearing;

Criminal Contempt proceedings can be in Family Court under the Code of Civil Procedure contempt statutes where the Citee has the majority of the same rights as a person charge with contempt under the Penal Code. A person found guilty under the Code of Civil Procedure in Family Court can be placed on probation, be required to perform community service, or be required to spend time in jail. The proceedings can also be in Criminal Court under the Penal Code which is prosecuted as a misdemeanor. This is separate and distinct from contempt matters being brought in Family Court.

Call the Law Office of Tracy Duell-Cazes, also called TDC Family Law

As you can see, Contempt of Court is a wide-ranging charge and can be extremely complex to bring to court and try.

Tracy Duell-Cazes is a Certified Family Law Specialist and works with Contempt of Court cases as a frequent part of her practice. Tracy has over 34 years of experience in the area of Family Law and working with clients to both prosecute and defend against Contempt of Court accusations.

Contact Tracy at TDC Family Law at 408-267-8484 for a consultation to discuss your situation.