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  • Barry J. Fisher

The Remedy of Civil Contempt

When a spouse or former spouse disobeys a lawful mandate of the court that he or she has knowledge of and, as a result, the other party is prejudiced, one remedy available to the prejudiced party is to make an application to hold the disobeying spouse or former spouse in civil contempt of court.


In order to establish that a party is in civil contempt, there are four elements that must be proven. In this case, the Appellate Division, Second Department concluded that the former wife met her burden of establishing by clear and convincing evidence that the judgment of divorce included an unequivocal mandate directing the former husband pay the sum of $206,094.50 in arrears for carrying charges on the marital residence, that the former husband had knowledge of the order, that the former husband disobeyed the order and that the former wife was prejudiced by his failure to pay. Although willfulness does not need to be established to prove a claim for civil contempt, the party against whom the civil contempt is sought can raise his or her inability to comply with the order or judgment as an affirmative defense. On the basis of credibility, the Court found that the Husband was unable to pay the amounts directed in the Judgment of Divorce. The Appellate Division affirmed and found that the trial court properly exercised its discretion in holding the former husband in civil contempt.


It is important both during and after a divorce proceeding that all parties comply with their court ordered obligations. This is true whether the parties amicably resolve their matrimonial proceeding or whether there is a decision after a trial. In most cases, Separation Agreements and Stipulations of Settlements executed by the parties which amicably settle their matters, are incorporated into their Judgment of Divorce and, as a result, become court orders. If a party fails to comply with a provision set forth in the Separation Agreement or Stipulation of Settlement incorporated into the Judgment of Divorce, they are not merely disobeying the Agreement or Stipulation. They are disobeying an order of the court and the court can impose penalties. In New York, a person who is found to be in civil contempt as a result of disobeying a lawful mandate of the court can be subjected to monetary sanctions or a jail sentence.


Bauman v. Bauman, 2022 N.Y. App. Div. LEXIS 4841 (2d Dept. 2022)

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