Scott Charles Maccabe
Scott Charles Maccabe, Family Law Attorney - San Juan Capistrano, CA
Posted about 2 years ago.

With the divorce about two years ago, the economic cicumstances could very well have changed between then and now. Following the advice of filing a contempt leaves you as the charging party with the burden of proof. That burden is not on your former husband in a contempt filing brought by you.

Babak Robert Farzad
Babak Robert Farzad, Family Law Attorney - Santa Ana, CA
Posted about 2 years ago.

The charging party always has the burden of proof but only to the extent of CCP 1209.5. All she needs to show is a valid underlying order, his knowledge of the order and noncompliance. She doesn't have any burden to show he has the ability to comply. If he wants to allege an inability to comply, then that is HIS burden of proof, not hers because it is an affirmative defense. If he is putting gas in his car, food on his table and spending money more than $100.00 per month (what he is paying her), then he has the ability to comply with the order and, at a minimum, pay more than $100.00 per month that he is paying. Child support takes priority over nearly all other debts.

Scott Charles Maccabe
Scott Charles Maccabe, Family Law Attorney - San Juan Capistrano, CA
Posted about 2 years ago.

All true, but whether it is child support or spousal support - the question does not specify and I do not believe it would be a relevant point even though the assertion of priority is correct. The ability to comply still needs to be covered (affirmative defense or not), and the issue is whether two years is significant or not. True that the court at one point two years ago found ability, but do the McCarty and Mery cases support that continued finding as time has passed now. Separately, the decision needs to be made whether the contempt filing will serve her purpose and there needs to be a better understanding of all the facts and if the case is being handled by the Department of Child Support Services or not as other remedies might be pursued..