“A court order is worth as much as the paper it’s printed on.” Author Unknown. Most parties to a divorce, paternity, or other family law case are relieved to have an order or decision signed by the court. Many don’t realize that their ex may violate the terms of the court’s order before the ink is even dry. How one responds to such a violation is critical. At least 3 options exist: (1) Enforce the order in court; (2) File a case with the Office of Recovery Services; or (3) Do nothing and risk waiving that right.
Enforce the order in court. A party must file a motion to bring the matter to the court’s attention. In divorce and custody matters, the issue is first submitted to the commissioner to determine if there is enough evidence to bring the alleged violation before the judge. After listening to the statements of the parties and other witnesses, the judge may issue an order of “contempt” if the party knowingly violated the order. The court can then issue certain sanctions against the violating party, including jail time, paying for the other party’s attorney fees and costs, entering a judgment against the violating party, suspending business licenses, taking away driver licenses and passports and any other punishment the court believes necessary to ensure the violating party’s future compliance with the order.
File a case with ORS. A good alternative to court action to obtain child support arrears is Utah’s Office of Recovery Services, or “ORS” for short. ORS has the authority to garnish paychecks and bank accounts and may intercept tax returns of the party who is obligated to pay child support. This assistance is provided at virtually no cost.
Unfortunately, ORS cannot hold a party in contempt of court or issue sanctions against a party for failure to pay a child support obligation. Only the court has the authority to do this. Thus, if the non-paying party is unemployed or self-employed and keeps money in a business bank account to avoid garnishment, ORS has few tools available to them to ensure compliance with the order. In these situations, therefore, a party should ask the court to enforce the order, being mindful of the added expense and time required to navigate the court system.
Do nothing and risk waiving a right. A waiver can be a party’s express or implied intention to relinquish a known right. Flake v. Flake, 2003 UT 17, P 29. If a party does nothing to remedy a violation, that party should at least communicate to the violating party that he/she does NOT relinquish the right to enforce the order at a later time.
In order to enforce rights under a family law order, rather than waive them, one should consult with a knowledgeable attorney to assess which legal approach is best for that specific situation.
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I help people protect and enforce their rights in divorce, custody, paternity, enforcement, and modification proceedings. If you or someone you know needs help with a case, please call 801-424-5280 to schedule a consultation, or use our online scheduling tool.
