Atlanta, GA family law attorney Judith Delus Montgomery talks about modification and what it means as well as filing a contempt.
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We defend and represent folks in contempt very often than not. Once the party is divorced there is an order that is signed by the judge, and that’s kind of like the family’s Bible and it has to be adhered to. What courts don’t want to get into is the minutiae of it all. But if there is clear signs that one party is not following the order, then the courts would have to get involved. And so when we’re saying you’re not dropping the kids off on time, that may not be a big deal. But not bringing the children back on the day they’re supposed to be back, that could be an issue, especially when we’re able to show a pattern.
So what you don’t want to do is one time they fail to drop the child off or one time they kept the child, and then you say I’m going to go and file a contempt action. No. You want to show a consistent pattern of that. Right. You want to make sure that you keep up with the dates. You want to videotape. You want to record. You want to make sure that you have sufficient evidence when it is time for you to go to court. But you can absolutely go to the court for assistance when one party is not meeting the requirements of that order. But you can also modify. So modification and contempt are two separate things. Okay. And they are two separate actions, as well.
A contempt comes off of the original divorce decree or a custody order. But a modification is a completely separate and new action. In the time that you would file a modification is when you can show that there has been a substantial change in circumstances, whether someone is getting ready to move out of state. Someone has gotten laid off. Someone is now on disability. You are able to show listen, the child support that I was paying before I can’t pay anymore because something has happened.
What you first want to do is reach out to the other party. Before you even try to get the courts involved you want to reach out to that other party and see if you guys can work it out. See if you guys can get a mediator and try to work it out that way. If you can’t, then obviously the courts will get involved. But for a modification you want to be able to show substantial change in circumstances. That is a burden that you’re going to have to prove, and if you can’t prove that you’re not going to be able to modify that order. The other thing the courts don’t want is you running back to court every time you want to modify, and so they put a limitation. Usually there is a two year bar. So if you’ve modified it, then you have to wait two years before you can modify again.
The contempt action is when someone is not following the order. At that point in time you can file that whenever. There is not a bar on that. And so what the courts are going to be looking at is are you in contempt? And in contempt means that you’re not following the order. That’s one. The second question that they’re going to ask is, is it willful contempt? Very different. There is willful and there is not willful. Even if you’re found in contempt, but if you’re found to be not willful then the courts aren’t going to hold that against you.
So for example, if you haven’t been paying child support. That’s usually the number one reason why you see contempts happen. Someone will file a contempt and the other person will respond, but they’ll say listen, I got laid off or I’m sick. You know, I’ve had surgery and I’m not able to do the work that I was able to do. And so in that instance the