Family Law: Motion for Contempt
If you need to ask the Court to enforce a prior order because the other party is violating it, first decide whether to file a Motion for Contempt or a Motion to Enforce. To help you decide, read the Before You Start section. If you decide that a Contempt Order is what you need, follow these steps.
Here's What To Do…
Step One: Court Forms
Get the Motion for Contempt forms packet from the District Court clerk. You can also get the forms online, except for the Subpoena form. You must pay the court clerk $5.00 for a signed Subpoena. Read the information cover page carefully. Review the original judgment or order in your case, along with any later orders that changed or enforced your original judgment. When you fill out the Motion, be clear about which order, and which part of that order, you are trying to enforce.
Be prepared to pay these costs:
Subpoena (signed court form): $5.00
Service: $20.00 or more
Note: If you are trying to enforce child support only, you don't have to pay a filing fee.
You may ask for a fee waiver if you have a low income and cannot pay the fees. Ask the clerk for an Application to Proceed Without Payment of Fees and Indigency Affidavit. Fill out the forms, along with the motion form. The clerk, or a notary public, must witness your signing the affidavit form. If you need help with filling out these forms, go to our page on Court Fee Waivers.
If you receive TANF, SSI or general assistance, the court should waive the fees. Contact Pine Tree Legal if you are denied.
Get the forms and file them in the Court that gave the original judgment. In some cases, you may be able to move to another Court, but you would probably need a lawyer to help you do this.
Step Two: Complete the Forms
To complete the top part of each form, copy from your original judgment or prior order. The location, docket number, and names of plaintiff and defendant stay the same. If you can't find your old judgment, you can buy a copy from the clerk.
Motion for Contempt
On the Motion for Contempt form, check the box under the “Motion for Contempt” heading if your motion is about child support only.
At #2 write the date of the order you are trying to enforce. Then check the box or boxes which fit your issue.
At #3 explain what the other party has done to violate the earlier order. Follow the list of issues you checked in #2 and explain each violation in the same order. Be as brief as possible. If you need more space, you can continue onto a blank sheet of paper.
Note: If any of your mutual children have received TANF (formerly AFDC) or MaineCare (formerly Medicaid), you must send a copy of your Motion to DHHS at the address given on the form.
Finally, on page 3, check the box or boxes that describe what you want the Judge to order to fix the problem. Check the first two boxes.
The third box asks for “Remedial Sanctions.” These are orders the Judge could give to insure that the order is followed or to pay you for the harm the other party has caused you. For example, the Judge could order extra visitation days to replace those that the other party refused to give in violation of the order. The Judge could also imprison or fine the other party for ongoing violations of the Court's orders. Another typical remedy is to require the other party to catch up on back child support that was owed but not paid. Check this box if you are asking for Remedial Sanctions. Check the fourth box if you want the Judge to order the other party to pay your costs of bringing the Motion.
Before you go to court on your Motion, think about what you think the Judge should do to fix the problem. Then you will be prepared to explain exactly what you want the Court to order.
Date and sign the Motion in front of a notary public. Check the right box to show whether you are the plaintiff or defendant. (Remember that your original court judgment shows, at the top of the page, who is plaintiff and who is defendant.) Write in your address and phone number. (If you want this information to be kept secret, for safety reasons, go here for more information.)
Next, fill out the form that says ORDER on the upper right-hand side. Fill in the top lines the same way you did with the Motion (copying from your original judgment). In the large boxes, add the current addresses for plaintiff and defendant.
The Judge will complete the rest of the form, by entering a hearing date and time and signing it.
The third form you must fill out is the Subpoena for Hearing on Motion for Contempt. This subpoena “commands” the other party to come to the court hearing on your Motion. You can also require the other party to provide papers or objects which the Judge should see to help him believe and understand your story. For example, you may want to subpoena the other party's financial records, tax returns, or other papers if they would help to show how the other party has violated the earlier order.
Fill out the top part of the form with the location, docket number, and the names of the parties. Next, fill in the name of the other party and check the right box to show if s/he is the plaintiff or defendant. (For now, leave the middle section--notification of hearing--blank.)
If you want to require the other party to bring documents to the hearing, check the small box and list the papers you want. If your list is too long, go on to another piece of paper, attach it and note that there is a second page to the subpoena which is “incorporated.” Write the docket number at the top of the new page.
The clerk's signature should be on the form.
The fourth, and last, form to fill out is the Summary Sheet. Follow the detailed Instructions for Completing Summary Sheet that came in your forms packet.
After you have finished filling out the forms, make a copy of your motion. Then take the original forms back to the clerk. (If you are asking for a fee waiver, file the waiver forms at the same time.) The clerk will show your papers to the Judge. The Court will set a date and time for the hearing. If you have done everything correctly, the Judge will sign the Order. The clerk may fill in the hearing date and time and court location on the Subpoena for you. If not, add that information to the Subpoena by copying it from the Order.
Step Three: Serve the Forms
Now you must serve the papers on the other party. First, make 2 copies of the Subpoena (with copies of your Motion and the Order attached). Keep one copy. Give the original and one copy to the sheriff for service.
In a letter, or in person, ask the sheriff's office to deliver the Subpoena, the Motion, and the Order to the other party. Give a home address. If you think the other party will be hard to find at home, give a work address. Remind the deputy that the papers must be served at least 10 days before the hearing date, unless the judge ordered a shorter time.
If you did not get a fee waiver, the sheriff's office will charge you for this service (about $15-$30). If the Court gave you a fee waiver, give the sheriff a copy of the Court's Order so that you will not be billed for this service.
After the sheriff sends the packet of papers back to you with the back of the Subpoena form filled in, file them with the court clerk.
If you are the person who got the papers from the sheriff and you oppose the motion, file a written response with the clerk at least 3 days before the hearing. Give or mail a copy of your response to the other party at the same time. To find out what will happen next, read on. The following information applies to both parties.
Step Four: The Hearing
This is a formal court hearing. The Judge will hear each side. You can testify for yourself, bring witnesses, and present documents. Court rules of evidence and procedure will be followed.
To prepare for the hearing, plan what you need to say. Be ready to tell how the other party has failed or refused to follow the Court's order. Your proof must be “clear and convincing,” a high standard of proof. You must also convince the Judge that the other party has the power or ability to comply with what he was ordered to do. If you are defending, be ready to explain how you have already complied with the earlier Order, or the reasons why you cannot comply.
You may want to make a list of the major facts and points you need to make. If you know people who have first-hand knowledge of important facts, you can ask them to testify at the hearing. If a witness is unable or unwilling to come to the hearing, you can subpoena him. Read more about how to subpoena a witness.
The Judge cannont rely on a letter, or even a sworn statement, from an absent witness if the other parent objects. The only way you can be sure that a Judge will consider your witness’s statements is by having that person come to the court hearing and testify.
At the hearing, you will be given a turn to tell your side of the story. You will also have the chance to ask the other side questions. The Judge may ask you or others questions. Since you do not have a lawyer, the Judge may guide you through the hearing. But remember that she must be neutral and cannot give you or the other party legal advice.
The deadline for appealing a Judge's final order to the Maine Law Court is 21 days after the clerk enters the order on the docket. File any appeal with the District Court clerk. You will probably need a lawyer to help you go forward with an appeal. If no one files an appeal, the order becomes final in 21 days.
Step Five: Follow Through
If the Judge orders sanctions, it is up to you to monitor whether the other party is following the Order. Let the Judge know about any violations by filing another Motion for Contempt and asking for harsher penalties. Steeper fines or imprisonment for ongoing violations may be the Court's next step.