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When your ex doesn't follow the divorce decree in Georgia
Summary
If your ex doesn't do what the divorce decree or a court order requires, you can ask the court that issued it to enforce it, usually with a motion for contempt. A judge can find a person in contempt for disobeying a court order or decree.[1]
For unpaid child support or alimony, the contempt motion is filed in the same case, without a new filing fee.[2] Unpaid support also builds interest, and the state child support office (DCSS) has its own collection tools.
A contempt case enforces the order as written. The judge can clarify what it means, but can't change it there.[3] Changing custody, support or alimony takes a separate request.
How contempt works
- You file a motion asking the court to hold your ex in contempt, and the court sets a hearing. For child support and alimony, the motion is part of the original case, and the papers can be served by mail if your ex signs and returns an acknowledgment.[2]
- At the hearing, the judge decides whether your ex violated the order and whether it was willful.
- If so, the judge can order your ex to comply, for example by paying what's owed by a deadline. In civil contempt, a judge can order jail until the person complies, but can't keep someone jailed who truly can't comply.[4]
- Not having the money is a defense only in narrow cases: the person has to show they've used every resource available and made a real, good-faith effort and still can't pay.[4]
- In a contempt case, the judge can order one side to pay the other's attorney's fees, after considering both sides' finances.[5]
Unpaid child support or alimony
- Past-due support and other money awards in family cases build interest at 7% a year, generally starting 30 days after each payment was due. The judge can waive or reduce the interest after weighing things like good cause and hardship.[6]
- If unpaid child support adds up to at least 60 days of support, a judge can order a driver's, professional, hunting or fishing license, or a vehicle registration, suspended, after considering whether the parent is able and willing to pay.[2]
- If DCSS handles the case, it can use wage withholding, license suspension, tax refund and lottery intercepts and reports to credit bureaus, and usually turns to contempt when those fail.
- DCSS focuses on child support. It can collect spousal support only when it's part of a child support order. For alimony on its own, or for custody and parenting time, you'd ask the court.
Missed or blocked parenting time
- Refusing to follow the custody or parenting time in a court order can also be enforced through contempt.[5]
- Child support and parenting time are separate. Georgia's Supreme Court has said visitation shouldn't depend on payment of support, and each is enforced on its own.[7] So don't keep the children from the other parent because support is late, and don't stop paying because you're being kept from the children. Either can put you in violation of the order.
- A parent who is withholding court-ordered visitation, or custody, can't bring a contempt case or a request to change custody or alimony while that continues.[8]
- If the schedule isn't working, the parenting-time part of the order can be reviewed on a motion, no more than once every two years.[9] Changing custody itself takes its own complaint, not a response to a contempt motion.[10]
Property, debts and other terms
- Contempt can also be used when an ex doesn't hand over property, sign a deed or title, refinance a loan by a deadline, or pay a debt the decree assigned to them.[5]
- The judge can enforce the intent of the decree and clarify unclear terms, but can't rewrite the property division in a contempt case.[3]
- Remember that a lender isn't bound by the decree. If your ex doesn't pay a joint debt, the lender can still come after you, so act quickly.
Before you file
- Read the order closely and note exactly which term was broken and when.
- Keep records: a log of payments, bank records, missed exchanges with dates and times, and messages. Keep your own messages calm and short, since they may end up in front of a judge.
- Keep following the order yourself while you ask the court to enforce it.
If you're the one who can't keep up
If your income drops or your situation changes, ask the court to change the order as soon as you can. The current amount stays due until a judge changes it. For child support, an agreement between parents to change it is enforceable only once it's made a court order.[11] Falling behind and waiting can mean back support, interest and a contempt case.
Questions you might ask a lawyer
- Is what my ex did a violation of the order as it's written?
- Should I file for contempt, go through DCSS, or both?
- What records should I bring to the hearing?
- Can I ask for interest or attorney's fees?
- Should I also ask to change the order?
Common questions
What can I do if my ex won't pay child support in Georgia?
You can file a motion for contempt in the original case, without a new filing fee,[2] or work with the state child support office (DCSS), which can use wage withholding, license suspension and tax refund intercepts. Unpaid support also builds interest at 7% a year.[6]
Can I keep the kids from my ex if they don't pay child support?
No. Support and parenting time are enforced separately, and visitation shouldn't depend on payment.[7] Keeping the children from the other parent can put you in violation of the order. Ask the court to enforce support instead.
Can a judge change the divorce decree in a contempt case?
No. In a contempt case the judge can enforce the decree and clarify what it means, but can't modify it.[3] Changing custody, support or alimony takes a separate request.
Can someone go to jail for not paying child support in Georgia?
It's possible. In civil contempt, a judge can order jail until the person pays, but can't keep someone jailed who truly can't pay after exhausting every resource.[4]
Sources
- ^ O.C.G.A. § 15-1-4, the court's contempt power (Justia)
- ^ O.C.G.A. § 19-6-28, enforcing support orders by contempt (Justia)
- ^ Gonzalez v. Crocket (Ga. 2010), clarifying but not modifying a decree (Justia)
- ^ Bernard v. Bernard (Ga. Ct. App. 2018), contempt and inability to pay (Justia)
- ^ O.C.G.A. § 19-6-2, attorney's fees in alimony and divorce cases, including contempt (rulesofcivilprocedure.com)
- ^ O.C.G.A. § 7-4-12.1, interest on family court money awards (Justia)
- ^ Griffin v. Griffin (Ga. 1970), visitation and child support are separate (Justia)
- ^ O.C.G.A. § 19-9-24, no contempt case while withholding visitation (rulesofcivilprocedure.com)
- ^ O.C.G.A. § 19-9-3, reviewing parenting time (WomensLaw)
- ^ O.C.G.A. § 19-9-23, complaints to change custody (rulesofcivilprocedure.com)
- ^ Pearson v. Pearson (Ga. 1995), support agreements need a court order (Justia)
- O.C.G.A. § 19-6-28.1, license suspension for unpaid child support (Justia)
- Georgia Division of Child Support Services, FAQ on enforcement
Laws and court rules change. If something here looks out of date, email help@divorce.city.