By Katarina Nguyen
The biggest hurdle in family law litigation is often the initial one: getting that first court order. This applies to spousal support and child support, particularly when the payor spouse or parent is contesting paying the amount of support you are seeking or contesting paying any amount of support at all. But you complete all the litigation and trial to obtain your spousal support and/or child support order, the fight may not be over.
When a payor spouse or parent fails or refuses to pay their court-ordered support, you’re left with only two options: working out a resolution with the payor spouse or parent or, more often than not, resorting to litigation. Most people are apprehensive at the idea of having to go back to court because of the time, energy, and financial resources it takes. Plus, they remember the initial litigation and how hard it was to get that first support order and the idea of going back is discouraging. However, you’re able to ask the court to award you attorneys’ fees if the payor spouse or parent is not paying.
But lawsuits to collect on spousal support or child support arrears are actually relatively straightforward and typically involves much less effort than the initial support determination. This is because the court is only interested in four main questions: (1) whether the payor spouse or parent failed to pay the full amount due and, if yes, how much back-support is owed, (2) whether to hold the payor spouse or parent in contempt of court for violating the support order, (3) setting a new payment plan for the arrears on top of the regular support that continues to accrue, and (4) determining whether any additional punishments are necessary as a result of a contempt finding. Plus, again, you are able to ask the court to award you your attorneys’ fees for bring this type of lawsuit.
These lawsuits are referred to as “show cause” petitions or, simply, a “show cause.” “Show cause” means that the payor spouse or parent has to appear in court and “show cause,” i.e., explain why he or she is not in violation of the court order and should not be held in contempt.
Show cause litigation in Virginia comprise of two steps: there is the first, initial status hearing, also called the initial return, and the second hearing, which is the trial. There may be other hearings in between depending on whether you or the payor spouse or parent files any motions.
I. The Filing Requirements
Va. Code Section 8.01-274.1 provides the requirements for show cause petitions in the Circuit Court, while Va. Code Section 20-115 provides additional details for show cause petitions in the family law context in the Circuit Court. You will need to file a “rule to show cause,” the show cause petition, and an affidavit. The petition and affidavit can be the same document, but the rule to show cause is separate. The rule to show cause is a very brief order that is entered by the court. The order instructs the payor spouse or parent to appear at the designated initial return date. The order does not grant your petition, but rather merely initiates the court hearing process by putting the payor spouse or parent on notice of the proceeding.
Va. Code Section 16.1-278.16 provides the requirements for show cause petitions in the Juvenile and Domestic Relations District Court (“JDR Court”). The JDR Court uses Virginia form DC-635, which has instructions.
The court you file your petition with depends on which court entered your support order. If the Circuit Court entered the support order, which may be part of a final divorce order or a settlement agreement incorporated into a final divorce order, then you may file in Circuit Court. However, you should review the order and/or settlement agreement to see if the Circuit Court remanded the matter of spousal support or child support to the JDR Court. If yes, then you will need to file your show cause petition with the JDR Court. And if the JDR Court entered your support order, then you simply file your show cause petition with the JDR Court.
Generally, you will need to include a copy of the support order with your show cause petition. When filing, you should bring one original copy of each document and extra copies for service and for you to keep for your records. If in doubt, call the court and ask about the number of copies that is required, but remember to bring one extra copy to get date-stamped with proof of filing for your own records.
Va. Code Section 8.01-274.1 requires the rule to show cause, the show cause petition, and the affidavit to be served on the payor spouse or parent. Va. Code Section 16.1-278.16 requires personal or substituted service of the documents.
Va. Code Section 8.01-296 details the types of service that are permitted for individuals. Personal service means hand-delivering a copy of the documents to the actual payor spouse or parent. Substituted service means hand-delivering a copy of the documents to a member of the payor spouse or parent’s household that is at least 16 years of age. Substituted service can also mean posting a copy of the documents to the front door of the payor spouse or parent’s “place of abode,” or their home, and mailing a copy of the documents to the same address at least ten days before the first hearing date, with a certificate of mailing filed with the court.
If the payor spouse or parent lives in Virginia, you can request service through the Sheriff’s Office for $12.00. If they live outside of Virginia, you can obtain service through the Secretary of the Commonwealth or by private process service.
III. The Initial Return
The initial return is normally a short status hearing. The court will ask the payor spouse or parent if he or she admits to owing the amount you stated in your petition. If yes, then the court may enter a final order that same day or schedule another hearing on the contempt disposition. If no, then the court will schedule a trial date.
If you are in the Circuit Court, you automatically have the right to issue discovery. But if you are in the JDR Court and you want to be able to issue discovery, you will need to ask the court for permission at the initial return. The court may ask you to explain why you believe discovery is necessary.
IV. The Trial
At the trial, bring your support order and proof of all payments made by the payor spouse or parent since the entry date of your support order. The court will ask you how much the payor spouse or parent owes you through the trial date, so be prepared to provide that number along with any supporting calculations.
If the payor spouse or parent is unable to provide proof of payment for any month that you stated he or she missed or failed to pay in full, then he or she will be unable to disprove your testimony.
The court will weigh the evidence presented, including the parties’ testimony, the testimony of any witnesses, and any other evidence submitted before the court. The court will then decide whether to grant your show cause petition and find that the payor spouse or parent violated the support order. If yes, the court may enter its final ruling that same day or it may set a status hearing some time out for the ruling. The court may delay its ruling to allow the payor spouse or parent time to demonstrate that he or she is putting in a serious effort to comply with the court’s order. If he or she does so, then the court will likely exercise leniency in its ruling.
V. The Ruling
Regardless of whether the ruling happens the same day as trial or at a later date, the court first decides what the arrearage amount is after weighing the evidence. Once that amount is determined, the court will decide how the payor spouse or parent will make payments towards that arrearage. The payor spouse or parent may already have an existing spousal support or child support obligation owed to you, so the court will take that and the payor spouse or parent’s financial status into consideration when setting the arrearage payment. The court will also decide whether to formally hold the payor spouse or parent in contempt and, if yes, whether to sentence the payor spouse or parent to imprisonment for a term of up to one year. The court is not required to hold the payor spouse or parent in contempt in order to order him or her to comply with the support order. The court may also order the payor spouse or parent pay for your reasonable attorneys’ fees and costs.
While suing in court can be daunting, show cause petitions based purely on nonpayment of support are often relatively straight forward because the evidentiary burden is easy to prove: either the payor spouse or parent paid or didn’t. Once you establish how much is owed, the arguments shift to how much the payor spouse or parent can afford to repay on a monthly basis and whether the court ought to make a contempt finding.
If you need assistance filing a show cause petition or would prefer to have an attorney represent you in court, especially since attorney’s fees are recoverable in these actions, please feel free to contact us for a consultation.