COURT ORDER? WHO CARES?

When I first began practicing law 30 years ago, a court order meant something. If a Judge told the client to do something, he or she did it. Period. My how the situation has changed.

Today, courts routinely issue orders in matrimonial litigation that are ignored by both the litigants and their lawyers. The consequences of refusing to comply? Nothing, and in some cases, a serious tactical advantage to boot.

Lets take an example. Courts routinely issue pendente lite orders, which require one side to pay certain monthly obligations of the parties until the trial. Such orders also include provisions for maintenance and child support, as well as legal fees. Typically, the husband will be directed to pay the carrying charges on the marital residence, as well as weekly payments of child support and/or maintenance. Recent appellate decisions also make an award of legal fees much more likely. Suppose the court orders the husband to pay the carrying charges, child support and the wife’s legal fees. And further suppose that the husband refuses to do so? What happens?

The wife can move in court (at her expense) to compel compliance with the order. Due to hopelessly overcrowded court dockets, such motions can drag on for months. Eventually, there will be a further order directing the husband to comply with the first order. Suppose the husband continues to refuse to pay? Now the wife can move for contempt of court. The court will have to have a hearing on the issue of whether the husband is deliberately refusing to comply. The husband, of course, claims that he cannot comply, that he can’t afford to pay, etc.

The motion for contempt, and the subsequent hearing, drag on for many more months. The overburdened judge really does not want to take up valuable court time doing a contempt hearing, especially since the husband can pay even after the hearing is over. So the case drags on and on.

Look what is happening. The husband, by refusing to comply with a valid court order, has a superior tactical advantage. The wife is struggling without necessary funds, and her lawyer is working without being paid and building up a big balance. Maybe the wife’s lawyer moves to be relieved as counsel since she is not being paid. The merits of the case do not get addressed, since the case is mired in the side issue of the husband’s refusal to pay. The husband is, in effect, starving the wife into a settlement on his terms.

Courts unwitting play along in this strategy when there is no penalty for ignoring a court order. And the crushing caseloads of judges today virtually dictate that not all orders will be enforced. The result is a serious injustice for the non-monied spouse.

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