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It's The Law: Support Default Can Result In Jail Time

Question: My ex-spouse is supposed to be paying child support, but stopped paying when she got a new boyfriend. When that happened to one of my friends, the ex-spouse ended up in jail. Can I complain to the Sheriff and have my ex-spouse arrested?

Answer: Getting your ex-spouse thrown in jail for failure to pay family support is not quite as easy as calling the Sheriff, but it is possible. Jail time for failure to pay family support usually arises from what is known as civil contempt of court. Contempt of Court is punishable by incarceration.

In criminal contempt, a wrongdoer is directly, flagrantly, and willfully violating a court directive or rule of decorum in presence of a judge and can be incarcerated immediately. In civil contempt, the court must first determine if the defaulting party has willfully violated the court order and then determine the appropriate remedy or punishment. If contempt involves failure to pay family support, the court must not only find ability to pay, but must also order an amount that can be paid by the wrongdoer to purge the contempt. In effect, the wrongdoer is given the key to his or her own jail cell.

Civil contempt is not available for all failures to pay in a family or divorce setting. It is available for failure to pay attorneys fees awarded by the court and family support, including alimony and child support. Child support is not limited to monthly payments, but extends to any required payments for special needs, medical care, insurance or education. Contempt of court is not generally available to enforce terms of a property settlement, but can be available if a party fails to comply with terms of a judgment ordering performance of an act such as deeding property or transferring assets from one ex-spouse to another.

A judgment ordering payment of family support creates a presumption of ability to pay. Florida cases hold that the person obligated to pay must introduce some evidence of inability to dispel this presumption. However, judges who rely on the ability to pay to order jail time are generally reversed. The appellate court requires a specific finding of ability to pay, which must be based on evidence rather than the presumption created by the earlier judgment.

Financial position of the obligor’s family or new spouse is not usually relevant, as they are not assets or income owned by the obligor. In a few cases, where the connection is strong and access appears easy, courts have allowed contempt where other family resources provide the key to release from jail.

In Sibley v. Sibley, a former husband failed to pay any of the $4,000.00 monthly child support payments to his former wife. He was sentenced to jail for civil contempt and the judge found he had a present ability to pay a purge amount of $100,000.00. The court found that Mr. Sibley could “command, simply by asking, the payment of the purge amount through his very wealthy father…” Mr. Sibley’s father had apparently given him $250,000.00 for a business, forgave a loan to his son of $200,000.00, gave large sums to support Mr. Sibley’s new wife and other child and legal fees for at least 16 lawsuits filed by Mr. Sibley. The father also employed Mr. Sibley.

In Mendana v. Mendana, Mr. Mendana quit his job because he objected to the amount of money being deducted from his paycheck by court judgment to pay support to his former wife. The court held him in contempt, ordered him to jail and provided he could avoid jail by paying $14,700.00 to his ex-wife. Mr. Mendana was living with his fiancé and helping her pay their expense, which included utilities, car insurance and a mortgage. Mr. Mendana’s fiancé loaned him $17,000.00 to pay his attorney’s fees in the support case, which the court noted was more than the $14,700.00 purge amount ordered by the court.

In Sibley and Mendana, family or close friends were paying money to or for the obligor that were considered large in relation to purge amounts contained in contempt orders. In both cases, the obligor appeared to have ready access to funds far in excess of the purge amount ordered by the court. On appeal, both jail sentences were upheld.

These cases are not always easy, especially when it appears the obligor lost employment due to circumstances beyond his or her control. Recent downturn in our economy has lead many judges to accept unemployment as a fact of life and when an obligor is unemployed, it may be difficult to prove ability to get a job. As in most litigation, these cases rise and fall with the evidence. You are well advised to retain an experienced attorney before proceeding further.

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