Why You Should Not Violate Your Judgment of Divorce

The 2nd Department issued a noteworthy decision in December of this past year which has straightened out the complexities involved with contempt applications.  Although the case law has always been very clear, there have been decisions issued which contradict each other, and confuse the issues of contempt.

The 2nd Department has cleared up all of the confusion, and broke down the issue of Civil Contempt.  The Court also made it clear that civil contempt does not require a finding of willfulness, unlike Criminal Contempt, which requires a willful violation of the Court Order.

The factors required to obtain a finding of civil contempt are the following:

1. That a lawful order of the court, clearly expressing an unequivocal mandate, was in
   effect.
2. That the order was disobeyed and the party disobeying the order had knowledge
   of its terms.
3. That the movant was prejudiced by the offending conduct.

Once these factors are met, the burden shifts to the alleged contemnor
to refute the movant’s showing, or to offer evidence of a defense, such as an inability to comply with the order.

This case has now simplified contempt applications, and has clearly provided the factors necessary for Judges to issue a finding of Civil Contempt.