When Life Gives You Lemons — Call an Attorney

After a divorce, there are many issues that co-parents may have to deal with, including child custody issues and child support. If your ex-spouse is not honoring part of your child custody agreement, such as not honoring a first right babysitting clause, or if they are late on child support payments, you have the option to seek court assistance to get them to comply with your court approved parenting plan and financial agreement. However, you may be confused about whether to file a motion to enforce or a motion for contempt against your ex-spouse. Answering these five questions can help you decide which is better in your specific situation. 

Do you know the location of your ex-spouse and will they go to mediation willingly? 

A motion to enforce is often sufficient if you know the current location of your spouse and if you know they will show up at mediation and will be willing to work with you. However, if your spouse is hostile to you and you think that they might leave the area rather than work out your parenting issues, then you may be better off filing a motion for contempt. This is because a motion for contempt results in an official court subpoena, forcing your ex-spouse to show up in court or be held accountable for their absence. 

Are you facing an immediate financial crisis? 

In general, motions for contempt take longer to file and process. This is because only a judge can hear a motion for contempt while a mediator can handle a motion to enforce. Furthermore, you will usually have to be granted permission by a judge before you can serve a motion for contempt to your ex-spouse. These delays means that it may take considerably more time before you see past-due child support payments. If you are in a financial crisis, a motion to enforce may be the quicker, more efficient way to get back child support paid to you. 

Have you filed a motion to enforce previously? 

If you have filed a motion to enforce previously and your spouse continues to avoid their responsibilities in the same area, then you may want to file a motion for contempt. However, if you filed a motion to enforce regarding an unrelated part of your agreement, such as your spouse not paying child support, and now they are breaking a different part of your agreement, such as extending their visitation hours without permission, then you might consider filing a second motion to enforce. 

Do you have enough proof to prove contempt? 

In most family courts, proving contempt is a complicated process that involves proving that there was a court order, proving that your ex-spouse knew about the court order, proving that they had the ability to comply and proving that they willfully did not comply. This may involve subpoenaing records from your ex-spouse and calling witnesses to testify on your behalf in person. If you are unable to prove contempt, you can still file a motion to enforce, as this generally requires less proof on your part.  

Do you want your parenting plan modified to prevent further disagreements? 

A motion for contempt is generally seen as a punitive measure. It is a way to punish a person who is not following a court order with the thought that this will make them follow the order in the future. However, if your main goal is to maintain peaceful relations with your spouse while enforcing your court order, a motion to enforce is usually a better idea. A motion to enforce also allows you to update the court order during mediation so further confusion can be avoided and both parties clearly understand their responsibilities. 

If you still do not know whether to file a motion to enforce or a motion for contempt against your ex-spouse, you should consult an attorney in your area for more assistance. Visit websites like http://www.gremlaw.com for more info.