Contempt of court

North Carolina Divorce Law Divorce and Separation Answers
1

I have filed contempt of court charges against former spouse for failure to pay court ordered post separation support and court date set.

I understand that I will have to show my needs as a dependent spouse. Nothing for me has changed since the order ( same income, same expenses, no extravagant purchases) except now I am in further debt since I did not have the post separation income.

His income has dropped since the order but we already went to court for this last year and the judge found he dropped income in bad faith. He now has remarried and has a spouse who works. His argument is that between the two of them they meet their financial needs (with his lower income) and he has no money left over to pay post separation support.

Main question is how do I show he has the ability to pay PSS? He is paying on a house and has 2 cars and a motorcycle. Do I have to look at his bank records and credit cards statements to see if he is overspending. The house he pays mortgage on is one he bought when he had his much higher income. Is that a valid point: to say he lives and pays for a house he cant afford, and if he lived in a home according to his present (much lower) salary he could afford PSS?

I read about “burden of proof”. Does this mean in this case it is not up to me to show he can pay, but up to him to show he can’t?

I personally feel with my ex spouse it is not that he CAN’T pay, it is that he doesn’t want to pay. Is this type of case just an uphill battle, usually? I don’t think a judge will send him to jail for not paying PSS, unlike child support. (I don’t wish for him to go to jail, just to pay something. Right now he pays zero, which shows to me that he is choosing not to pay, even if he had a few hundred dollars left over at the end of the month.)

Thank you

2

You are correct about the burden of proof being on him. It is up to him to show he cannot pay the ordered support, you need to file a motion to show cause, and his burden is to appear and show good cause as to why he is not complying with the Order.

3

thank you.

can I ask for attorneys’ fees to be paid?

Will it simply be a yes or no from the judge (either he can pay or he can’t) or might the judge reduce the amount or order a payment plan or something. I am afraid if the judge simply orders him to pay he just will not.

Is it up to my side to present a proposed payment plan or a proposed solution?

thanks again.

4

Yes, you can ask for attorneys’ fees. I can’t ever speculate as to what any one judge will do- certainly a judge could order a payment plan, they often do so. If he doesn’t pay them, then you will have to file another motion for contempt in civil district court. He will be given the opportunity to purge himself of the contempt (pursuant to what the judge orders) and if he does not- he can be sent to jail, but only the judge can decide that.

You may propose a solution, but you are not obligated to do so. If the judge orders him to pay you the PSS you are owed and continue to be owed, then it will be ultimately his problem to figure out a way to make payments or risk going to jail.