This blog post will discuss how to force compliance with court orders. I’m not talking about a routine run-of-the-mill court order. I’m talking about chronic non-compliant people, who no matter what the court does or says, just won’t comply with court orders. Therefore, compliance is more germane to a high conflict case.
Dealing with a Chronic Non-Complier
The first thing to understand is the nature of the person who is a chronic non-complier. This type of person does not fear getting into trouble, does not worry about the court’s action against them, and really has no respect for the legal system. Often in cases where we do civil restraining orders where we’re dismissing a final restraining order and doing a civil agreement to not have contact, the first question I always ask is, “Does this person fear getting in trouble?” “Does he or she have respect for the law?” If the person we’re talking about doesn’t have respect for the law, this information is going to be much more helpful.
The Laws Supporting Compliance
Next you need to understand what law is supporting compliance during the divorce procedure. While the law will often say the court has broad discretion to impose a sanction, even court orders may state that if there’s not compliance something will happen, it doesn’t always play out that way. Many times, family law judges miss the opportunity to “put teeth” into their orders. They won’t say something like, “If it’s not complied in 30 days, then a bench warrant will be issued”, or, “If it’s not complied with in 40 days, a licensed suspension will be issued.”
You Play a Large Role in Enforcement
So that leaves the burden on you, the person who got the order in his or her favor, to now have to go back and do it another time. And that’s why it’s important to understand what you’re entering. Know the court’s not going to put teeth into most of its orders. One situation can be tricky; where you are asking for an arrest. Generally, the mentality of judges is that if they put somebody in jail, they have no chance of the person complying with an order; especially when it comes to child support or alimony obligations. I don’t agree. I think if you tell somebody they’re about to go to prison, they’ll start making their payments, but most judges feel the other way. So they tend to ignore non-compliance with a lot of obligations for that very reason, which is ironic because that’s what feeds non-compliance.
What Kind of Person are you Dealing With?
Once you determine that you are dealing with a person who likely won’t comply, and you recognize that the court’s not likely to help ensure compliance, you must force the compliance immediately. If you’re going to be in the position of having to file another order once the time frame expires, file it right away. Don’t wait. Waiting will not encourage compliance. Don’t try to be reasonable. File the motion on the 31st day. That will do a couple things. One, it will make sure you keep the process moving, because motions usually take a couple months to get heard by a judge. Two, it sends a message to both the court and to the other party that you’re not going to sit around and leave it to your ex to comply.
You need to be relentless when you do this. So, each time you need to calculate when the next motion would be appropriate and start preparing that motion almost at the time you walk out of court so that you’re ready on that day. If for some magical reason you get compliance when you didn’t expect it, not much time or money is going to be lost, but much will be gained if you’re preparing it in advance. So as soon as you walk out with your order, start preparing your notes and your outline and securing the evidence that you need for the compliance for the follow up motion.
Now a lot of clients will try to minimize the work on motions by either typing their own certification or trying to make their own copies, which is great, sometimes that will work. But if you’re dealing with a lawyer, and you want to try to minimize your costs, ask him or her what would work best in your situation. I know when I get certifications from clients, it usually takes us more time to revise it to be worded the way that it needs to be and to say the things that we want it to say, than if our lawyers had just done it ourselves. Photocopies, same thing. Clients will often want to make photocopies, but it takes it out of our control, and we generally have a time issue often with filing. So while adopting a do-it-yourself attitude may be helpful, check with your lawyer first and see if they’re going to actually be useful.
Arrests and Suspensions Can Help with Compliance
When you file, you want to talk about the type of relief you are asking for. You always want to ask for arrest for non-compliance. The courts have the authority to do so. The court rules suggest it, even though generally speaking courts don’t do it. It should always be in there because you may get a judge who does it, but many times good judges will use it as a way to intimidate the non-compliant party with the threat of doing so and if it’s not in your papers they can’t even do that.
Next, you want to ask for whatever kind of suspensions you can get. Examples include suspension of their driver’s license, suspension of professional licenses, suspension of parenting time. All of these remedies are difficult to obtain, but you want to ask for them because if you don’t ask for them you’re not going to get them. And having all these things lumped into an order may just intimidate the other party enough to worry about the non-compliance that they would start complying.
Attach Things of Value
You will want your lawyer to attach anything that you can get of value, especially if there’s going to be financial obligations or daily sanctions, which is something you should always be asking for when there is non-compliance. If you’re going to be asking for license suspension, or daily sanctions, you want to ask that they attach the paycheck, retirement accounts, get a judgment, put a lien against their house. This strategy will help ensure that you get payment, and you won’t need to worry about non-compliance.
Lastly, after you’ve tried all of this, even in the same application where you’re asking for the arrest, daily sanctions, levying accounts, you want to also be creative. Think of things that you can ask for, even if you don’t think the court can do it and even in some cases the court doesn’t have the authority to do it but you ask for it anyway.
Because many judges don’t put teeth into their orders, you need to put it into your motion. Even if they don’t … Even if you don’t think you’ll get it, in some cases if the law doesn’t support it, but if you can make a good faith argument that it should be something the court considers, then you can do it. And that may actually help the compliance. The last two aspects, attaching something of value and trying to sell anything that you can get from them. Again one, to satisfy obligations and two, to scare them into thinking they need to comply.
Feel free to call me or any of the family lawyers for fathers at either 973.562.0100 in Nutley or, in Montclair, at 862.245.4620.