El Cajon, CA asked in Divorce and Family Law for California

Q: Can NC parent be held in contempt if only making part of CS payments that were ordered in CA

Ex spouse was ordered to pay $3,122 a month in CS and $2,607 a month in SS with a 3 month acceleration clause on arrears.

This year I was only given $12,000 total in small amounts periodically, often going 1 or 2 months with nothing. Ex seems to think that as long as he makes any payment no matter how small that he can not be found in contempt, is this true?

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3 Lawyer Answers
Robert P. Taylor
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Answered
  • Huntington Beach, CA
  • Licensed in California

A: Generally, for a parent to be found in contempt for failing to pay child or spousal support, the court must find that the parent had the ability to do so and willfully didn't. Contempt is what we call a quasi criminal proceeding that requires proof of intent. If someone is ordered to pay $3,000 a month and their income is only $2,000 a month, then they probably cannot pay the order and their failure is not willful. On the other hand, if they make $10,000 a month and fail to pay three, it is not difficult to find that the failure was intentional or willful.

Eliza Jasinska
Eliza Jasinska
Answered
  • Costa Mesa, CA
  • Licensed in California

A: Please talk to a family law attorney before considering any contempt actions. There are specific elements that a charging party must prove to establish contempt. Additionally, there are many defenses which may or may not apply. The information provided presents opinions and examples and does not substitute for, nor does it constitute professional legal advice from an attorney. It is general and may not apply to particular factual or legal circumstances. This information does not establish an attorney-client relationship. Transmission of the information is not intended to create, and receipt does not constitute an attorney-client relationship. Internet subscribers and online readers should not act upon any information on this website without seeking professional counsel. JASINSKA LAW FIRM PC expressly disclaims all liability concerning actions taken or not taken based on any or all of the contents.

James L. Arrasmith
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Answered
  • Sacramento, CA
  • Licensed in California

A: No, that is generally not true under California law. Making only partial child support payments that fail to meet the full monthly amount ordered by a California court could potentially subject your ex spouse to contempt charges.

Even if a parent lives out of state, such as in North Carolina, they are still obligated to follow and make payments according to California's child support order. Under California Family Code §290, the court has authority to find a party in contempt of court for failure to follow any aspect of lawful court orders, including the full monthly child support payment requirements.

The fact that some smaller periodic payments were made would not necessarily insulate your ex spouse from being found in contempt provided you can show:

- There is a valid court order for $3,122 monthly in child support that your ex had knowledge of

- Your ex failed to make the full monthly payments as ordered

- The failure to abide by the court order was willful

Given the 3 month acceleration clause and ongoing arrears, you would have a credible basis to pursue contempt charges. Paying only "any amount" defies the court order and simply making partial payments does not prevent the ex from being held in contempt. Consultation with a CA family law attorney is advised to review your options.

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