Contempt of Court Frequently Asked Questions: Cases

• Am I entitled to an attorney if contempt charges are brought against me?
• How do you file for contempt of court?
• My ex isn’t paying child support. Is she in contempt?
• What is the burden of proof in a contempt of court case?

1. Am I entitled to an attorney if contempt charges are brought against me?
   While Colorado Rules of Civil Procedure Rule 107 only speaks of the right to an attorney in a punitive contempt of court situation, there is case law supporting the notion that there is a right to an attorney in a contempt proceeding any time jail time is sought. Jail time can be sought in both a remedial or punitive contempt proceeding. The question of whether jail time is being sought will generally be raised at the first hearing, called the advisement. The right to an attorney essentially implies that if a person is deemed “indigent” based on his or her financial circumstances that he or she will have an attorney appointed to him or her by the court. The person will initially fill out a state form called a JDF-208 form, which lists income, assets, and expenses. The court will then determine if the person meets state guidelines to be declared indigent. The right to an attorney in a contempt situation stems from the fact that it is quasi-criminal in nature. The right to an attorney in a contempt cases often leads people to mistakenly believe that they are automatically entitled to a court-appointed attorney in a divorce or custody case.
2. How do you file for contempt of court?
   The first step our divorce and custody attorneys undertake when filing for contempt of court is the drafting of a motion/affidavit setting forth the facts and circumstances of the contempt. This must be signed and notarized by the party filing the contempt. This motion/affidavit, along with a blank citation and order will then be filed with the court. Upon review of the motion by the court, and assuming the court finds a prima facie case of contempt of court, the court will return a signed citation and order to the filer. The motion, citation, and order must then be served on the person in contempt, at least 20 days before the first hearing, called the advisement. At the advisement hearing, the person against whom the contempt is brought can plead guilty or not guilty. If the plea is guilty, there will likely be a subsequent sentencing hearing. If the person pleads not guilty, then a contested evidentiary hearing will be set, for the judge to determine whether a contempt has occurred. The court can enter a sentence at this hearing, or can set a later date for sentencing. The process may take 2 to 4 months, or more, before the issue of contempt is resolved.
3. My ex isn’t pay child support. Is she in contempt?
   Child support is probably the most common area in which contempt of court cases arise. This is partly because with each month there is a payment due. Thus, with each month, there is an opportunity for the party paying to not follow orders. In terms of contempt of court, to establish contempt one must show that there is a valid court order being violated by a party who has knowledge of the order and the ability to comply with it. Therefore, if the child support payer has a job or income, or funds to draw from for purposes of paying the child support, then she is likely going to be found in contempt of court. However, if she got laid off from her job and has been unemployed for a while, though the court might find that orders have not been followed, the court would not likely find that she had the ability to pay. A violation of orders alone does not lead a court to a finding of contempt. The facts and circumstances behind the violation also matter.
4. What is the burden of proof in a contempt of court case?
   There are two different types of contempt of court proceedings which can be filed, remedial and punitive. With the seeking of contempt sanctions, the party bringing the action must show that orders were willfully violated by the other party, who had the ability to comply. In a remedial contempt setting, the standard or burden of proof is a “preponderance of the evidence” standard. In lay terms, this is basically a 51% vs. 49% standard, meaning the court must determine it is more likely than not that a contempt of court has occurred. In a punitive situation, the standard or burden of proof is a “beyond a reasonable doubt” standard. This is the same standard as in criminal law case. In punitive contempt, just as in a criminal case, the party brining the action is seeking a punishment, whether jail time or a fine. With liberty or monetary concerns on the line, notions of due process would require the same treatment for defendants as in a criminal case. As divorce and child custody lawyers in Denver, we take contempt actions very seriously, particularly when jail is at stake.

If you have questions regarding a contempt of court case, contact our attorneys today.

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