Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

A party who fails to pay alimony or child support in Florida may face jail time if the failure to pay is willful. There are a number of requirements that must be met before a contemnor is arrested. The case Martin v. Eldemire-Martin, 4D19-3398 (Fla. 4th DCA November 12, 2020) outlines some of those requirements.

The former husband was accused of failing to pay lump sum alimony due to the former wife. As a result, the former wife filed a motion for contempt and a hearing was held. Although the former husband had notice of the hearing, he did not appear at the same. In his absence, the court granted the motion for contempt and issued a writ of bodily attachment and set a purge amount of over $600,000.00. The former husband appealed, arguing it was error to set this purge amount without evidence as to whether or not the former husband had the ability to pay it.

The appellate court agreed that the former husband had appropriate notice of the hearing, but held it was error for the court to set the purge amount in accordance with the Florida Family Law Rules of Procedure. Specifically, Florida Family Law Rule of Procedure 12.615(c)(2)(B) states that if the contemnor fails to appear for the contempt hearing, then the court shall “set a reasonable purge amount based on the individual circumstances of the parties. The court may issue a writ of bodily attachment and direct that, upon execution of the writ of bodily attachment, the alleged contemnor be brought before the court within 48 hours for a hearing on whether the alleged contemnor has the present ability to pay support and, if so, whether the failure to pay such support is willful.” The appellate court noted “The circuit court set a purge amount of $621,075.00 but did not consider whether this amount was ‘a reasonable purge amount based on the individual circumstances of the parties.’ [internal citations omitted] As a result, we reverse the court's writ of bodily attachment and remand for further proceedings.”

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