Obviously when one spouse or parent threatens to get the other spouse or parent sent to jail, things have gotten pretty ugly. The family court judges do not get any special thrill sending a family court litigant to jail. In fact, the family court system is set up to avoid jail time in most cases.
It is important to distinguish the notion of jail in family court from the typical notion of jail (or prison) in criminal court. In the case of a crime, one is sent to prison as punishment for a PAST transgression. In family court, one is sent to jail as a MEANS of compelling FUTURE compliance and cooperation.
For example, if a parent fails to pay child support, they can be held in contempt of court, but sent to jail only if the court finds that the parent has the ABILITY to pay child support and is refusing to do so. The family court is required to set “purge conditions” which are the steps that a party can take to get out of jail, or avoiding going to jail in the first place.
So, in the above example of a child support obligor, assume that the obligor has a monthly obligation of $400 per month, and $8,000 is past due. The family court judge cannot send the obligor to jail for failure to instantly pay the $8,000 unless the court has reason (on the record) to believe that the obligor is ABLE to pay $8,000 instantly. If the court finds that the obligor is unable to pay $8,000 right away, but IS able to pay $800 right away, and $800 per month thereafter ($400 for current support and $400 to go towards the past due amount), then the “purge condition” may be the $800 monthly payment.
The family court may hold the obligor in contempt, sentence the obligor to 30 days of jail, but stay the imposition of the sentence while the obligor complies with the ordered $800 monthly payments. If the obligor fails to pay $800 per month during the period of time that the past due support is outstanding, the obligor can be hauled into court and sent to jail. In this instance, the obligor’s failure to pay $800 per month is willful on the part of the obligor, and not beyond the obligor’s control.
When the obligor is given the jail sentence, it is not so much for the past transgression of failing to pay child support as much as the present or future transgression of failing to do the obligor is found to be capable of doing to become current on the obligation.