Nothing is more frustrating than getting Court order in place that address custody, visitation, and support, only to have your Ex continuously refuse to follow the Court Order. This is a common question that clients have, and they simply want to know what can they do?
As frustrating as this situation can be, there often times is not an easy solution. First, take the time to ensure you are compiling all of the necessary information and documents to clearly establish that your Ex repeatedly continues to violate the provisions of the Court order. How do you do this? Make sure you are saving communications (texts and emails) where they are blatantly disregarding the order. Additionally, if you have other individuals who have personally observed your Ex’s non-compliance, they could make for a valuable witness during subsequent proceedings.
The first step that can be taken (and without Court involvement) is by you or your attorney simply addressing the issue with your Ex and explain to them that they are not following the Court order and that this behavior needs to cease. Unfortunately, this step is typically limited in the results it can produce. If you ultimately want the Court to address the issue, you will likely need to file a contempt application or even a modification action, if the circumstances warrant it.
A contempt action is appropriate when you are asking the Court to find that a party has willfully disobeyed the Court order. The proceeding is primarily punitive in nature to punish willful refusal to follow a court order. In order to be successful in your motion, the moving party must show the conduct or actions were “intentional and deliberate with a bad or evil purpose, or wanton and in disregard of the rights of others, or contrary to a known duty, or unauthorized, coupled with an unconcern whether the contemnor had the right or not.” Ervin v. Iowa Dist. Ct., 495 N.W.2d 742, 744 (Iowa 1993). A failure to comply with the decree is not willful where the order was indefinite or the individual was unable to perform as ordered. The key to remember in contempt of court actions is the willful disobey requirement. This requires some level of proof for the court.
If the contemptuous actions of your Ex continue, even after filing a contempt application, the circumstances may warrant the filing of a modification action. By filing a modification action you are asking the Court to revise the existing order as it relates to issues of custody, visitation, and support. It is important to consult with a qualified and experienced family law attorney to evaluate your options before proceeding with either a contempt application or modification action.
Your Ex’s refusal to follow an existing Court order can be frustrating to say the least. However, you have options to address this non-compliance. To include potential court actions in the form of an application for contempt or a modification. To speak to one of our divorce attorneys, contact our Sioux Falls, Sioux City, or Omaha office today.