When a parent or former spouse fails to comply with a child support order or spousal support order, there are many child support and spousal support enforcement remedies available under the California Family Code. Perhaps one of the most effective remedies is filing an Order to Show Cause for contempt against the child support or spousal support obligor.
There is a difference between a criminal contempt action and a civil contempt action. Criminal contempt actions may only be brought by the Deputy District Attorney pursuant to Section 166 of the Penal Code. On the other hand, civil contempt actions may be brought by the support obligee (or the obligee’s attorney) pursuant to Section 1209.5 of the Code of Civil Procedure. Although either type of contempt action may result in the obligor’s incarceration, there are several differences between the two.
While criminal contempt actions are intended primarily to punish, civil contempt actions are intended to compel payment of support. Perhaps the most important difference between a criminal and civil contempt action is the burden of proof. Under a civil contempt action, the obligee need only prove there was a valid child support or spousal support order, that the obligor knew about it, and failed to pay. The obligor must then raise an affirmative defense, the most common of which is that his failure to pay was not willful, but rather because he was unable to pay. Under a criminal contempt action, the District Attorney must prove “ability to pay” beyond a reasonable doubt, but “ability to pay” is presumed under a civil contempt action).
Under a civil contempt action, the obligor may “purge” the contempt counts by paying what he was ordered to pay (but failed to pay) over the past 36 months. Although the child support or spousal support obligor may be sentenced to 5 days in jail for each month he failed to pay as ordered, he “holds the keys to the jailhouse door” because he can avoid incarceration by simply paying what he should have paid under the court order over the past 36 months. Under a criminal contempt, the obligor may serve time in jail regardless of whether he pays or not.
A civil contempt action can be complicated because there are constitutional rights at issue. Although the burden of proof for in a civil contempt action is easier than a criminal contempt action, they can still be very tricky. Remember, a contempt action requires a full trial (unlike other matters which may be disposed of with a hearing or long-cause hearing). As a support obligee, you should not expect to litigate your own contempt action. You must hire a good attorney with experience litigating civil contempt actions.
Serving Orange County, San Diego County, Riverside County, San Bernardino County, Los Angeles County, and Ventura County. We enforce California child support orders and spousal support orders anywhere in California, and in many cases, nationwide, under the the Uniform Interstate Family Support Act (UIFSA).
