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Lawrence D. Gorin
Lawrence D. Gorin, Lawyer.
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How do I file a contempt of court for late alimony payment

Resolved Question:

How do I file a contempt of court for late alimony payments?
Submitted: 8 years ago.
Category: Legal
Expert:  Lawrence D. Gorin replied 8 years ago.
     Spousal support orders are based on an obligation arising out of marriage and parentage and are imposed by law. They are not money judgments in civil actions for the payment of a "debt" within the meaning of the constitutional guaranty against imprisonment for debt and thus clearly are enforceable by contempt.

        Contempt proceedings to enforce a civil judgment or order are commenced by presenting a prescribed "charging affidavit" to the court. [Ca Civ Pro § 1211(a)] Based on the affidavit (which recites the facts constituting the prima facie contempt), the court must then issue and sign an order to show cause directing the alleged contemnor to appear and be heard on the charge at a specified date and time. [Ca Civ Pro § 1212]

    In family law cases, the contempt proceedings must be initiated by filing and serving an FL-410 Order to Show Cause and Affidavit for Contempt, along with an applicable Affidavit of Facts Constituting Contempt (FL-411 or FL-412). These forms have been adopted for mandatory use.

    The facts constituting the contempt must be alleged by an "affidavit of facts," setting forth the type of order violated, the date the order was issued, how the order was violated, and when the violation occurred. Jurisdiction to adjudicate a contempt ordinarily exists only if the charging affidavit alleges evidentiary facts showing a prima facie case of contempt (as developed below). [Ca Civ Pro § 1211(a)] However, a deficient charging affidavit may be amended at any stage of the proceeding (Ca Civ Pro § 1211.5(b)). And, if there is no objection to the sufficiency of the charging affidavit, jurisdiction to adjudicate contempt may be established by facts proved at the contempt hearing (in which case, the court "shall cause the affidavit or statement to be amended to conform to proof"). [Ca Civ Pro § 1211.5(a)]

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