Can I Be Held in Contempt for Not Paying a Debt?
For an ordinary commercial debt, no. For unpaid child support or maintenance, contempt is squarely available and Missouri has said so for fifty years. For a property payment or a debt a judgment assigned to your former spouse, contempt of divorce decree proceedings can be available by analogy to support, even though the Missouri Constitution bans imprisonment for debt.
That reads like a contradiction and it is not. Missouri draws a line between a debt you took on in the market and an obligation a court created out of a marriage. The line is old, and it is well traveled.
Support and maintenance sit at the center of this doctrine, because the doctrine came from them. Property payments and assigned debts sit at the edge of it, because they were brought inside later and by analogy. That distinction runs through everything below, and the wording of your judgment decides which side of it you are on.
Which Kind of Obligation Do You Actually Have?
Four different ones live inside a typical dissolution judgment, and Missouri does not treat them the same way.
- Child support. A duty owed to a child, collected automatically from income, enforceable by contempt, and in serious cases prosecutable as a crime
- Maintenance. Spousal support, on the same contempt footing as child support, and modifiable later only if the order says it is
- A property equalization payment. A fixed sum one former spouse owes the other to even out the division, and it can never be modified
- An assigned debt. A judgment telling one of you to pay a lender, which binds the two of you and does not bind the lender
The first two are support. The last two are property. That single split decides whether the obligation can be changed later, which collection tools exist, whether criminal exposure is on the table, and what survives a bankruptcy. It is worth knowing which one you are holding before anybody files a contempt of divorce decree motion.
What Does the Missouri Constitution Say About Imprisonment for Debt?
It bans it, with one exception written into the text.
Article I, Section 11 of the Missouri Constitution provides that no person shall be imprisoned for debt, except for nonpayment of fines and penalties imposed by law.
Read alone, that looks like the end of the discussion. A former spouse who owes money under a judgment owes a debt, and the Constitution says nobody goes to jail for a debt.
Missouri has not applied it that way to every financial obligation in a family case, and the reason is not a loophole. It is how the law characterizes where the obligation came from.
Why Does the Constitution Not Protect Every Divorce Obligation?
Because Missouri treats an obligation arising out of the marriage as a different thing from a bargain between a borrower and a lender, and the case that put contempt of divorce decree proceedings on constitutional footing is a maintenance case.
The leading authority is State ex rel. Stanhope v. Pratt, 533 S.W.2d 567 (Mo. banc 1976), where the Supreme Court of Missouri held that civil contempt for a willful failure to pay court ordered maintenance does not violate the constitutional ban on imprisonment for debt. It departed from earlier Missouri authority to get there.
The reasoning it adopted is the part worth keeping. Quoting an older out of state decision, the court described a maintenance obligation as “a duty growing out of the marriage status” rather than an ordinary commercial obligation. Three judges dissented, and the dissent went to whether present ability to pay had been established, which is a useful signal that the ability question is where these cases actually live.
The majority set a limit in the same breath, and it is the most quoted sentence in the opinion. “Before ordering imprisonment trial courts should be convinced that the person is financially able to make the required payment or that he has intentionally and contumaciously placed himself in a position so that he could not comply with the court’s orders.”
How Is Unpaid Maintenance Treated?
As the core case for contempt rather than the outer edge of it, because Stanhope is about maintenance and nothing has to be reasoned by analogy to get there.
That is the practical difference. Where a property payment goes unpaid, the argument starts with whether a contempt of divorce decree motion reaches this kind of obligation at all. Where maintenance goes unpaid, that question is settled and the hearing moves straight to the two things that decide the case, meaning what the order required and whether the person could have complied.
One feature of maintenance changes everything downstream and most people do not know it is there. Section 452.335.3 RSMo provides that “the maintenance order shall state if it is modifiable or nonmodifiable.” A modifiable award can be revisited when circumstances change. A nonmodifiable award cannot, which puts it much closer to a property payment in practice even though it is support in name. Read your judgment for that word before you assume anything. Our page on spousal maintenance covers how the award gets set in the first place.
How Is Unpaid Child Support Treated?
The same way as maintenance for contempt purposes, plus two enforcement routes that exist nowhere else in a dissolution judgment.
The first is automatic collection. Section 452.350 RSMo governs income withholding for child support and maintenance, and for orders entered or modified after 1 January 1994 withholding begins “on the effective date of the order” rather than waiting for somebody to fall behind. No contempt of divorce decree motion is needed to start collecting a current support obligation.
The second is criminal. Section 568.040 RSMo makes it an offense to knowingly fail to provide adequate support that a parent is legally obligated to provide, and it is a class A misdemeanor unless the arrearage exceeds an aggregate of twelve monthly payments, at which point it becomes a class E felony. That statute carries its own safety valve. “Inability to provide support for good cause shall be an affirmative defense under this section”, and the person raising it carries the burden by a preponderance of the evidence.
No equivalent of either exists for a property payment or an assigned debt. There is no automatic withholding for a marital debt and there is no criminal nonsupport statute for a credit card. Our FAQ on Missouri child support covers how the amount is calculated.
What Did Yeager Decide?
That a deliberate refusal to make mortgage payments the decree required can be looked at the same way as a refusal to pay support. It did not decide that the husband was in contempt.
Yeager v. Yeager, 622 S.W.2d 339 (Mo. App. E.D. 1981) followed a 1979 dissolution involving two farms and a single Federal Land Bank mortgage. The husband stopped paying his share, the lender moved toward foreclosure, and the trial court threw out the wife’s contempt claim on the constitutional ground.
The Eastern District disagreed with dismissing it that early. It held that “a spouse’s conscious failure to make mortgage payments pursuant to the property provisions of a decree should be enforced in the same manner as failure to make maintenance or support payments.”
Notice what that sentence is doing, because it is the hinge of this whole page. Yeager did not build a rule for property obligations. It reached across and borrowed the rule that already existed for support. Support is the standard and the property provision is measured against it, which is why anyone bringing a contempt of divorce decree motion over an unpaid equalization payment ends up reading maintenance cases.
Now read what the court actually did, because it is narrower than the sentence sounds. The relief was a peremptory writ of mandamus directing the trial judge to reinstate and hear the motion. It reopened the courtroom door. It did not walk through it and decide the outcome, and the trial court’s discretion on whether contempt should be found was left intact. Rehearing was denied in September 1981 and transfer was denied that November.
What Does the Statute Say About Enforcement?
That the terms of a decree carry every remedy a judgment carries, plus contempt for a willful violation.
Section 452.325.5 RSMo is the statutory source of the contempt of divorce decree power. It makes terms of an agreement set out in the decree enforceable by all remedies available for the enforcement of a judgment, and lets the court punish a party who willfully violates the decree to the same extent provided by law for contempt in other proceedings.
The load bearing word is willfully. A missed payment after a documented job loss and a deliberate refusal by somebody who has the money are not the same case, and the statute does not treat them as the same case.
The statute also gives you more than contempt. Where the obligation is a fixed sum, ordinary judgment collection may be on the table, which depending on the facts can include garnishment, liens or levy. Which of those is realistic usually comes down to the drafting. A clear amount, a clear date and a named responsible person is enforceable. “Husband shall be responsible for the marital debts” often is not.
Can a Support Order Be Changed If You Cannot Pay?
Yes, going forward only, and this is the sharpest practical difference between support and everything else in the judgment.
Section 452.370.1 RSMo allows maintenance or support to be modified “only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.” A lost job, a serious change in either household’s income, or a change in the children’s circumstances can meet that. Wanting to pay less does not.
The timing rule is the one that costs people money. Section 452.370.6 RSMo provides that “the order may be modified only as to support or maintenance installments which accrued subsequent to the date of personal service.” Everything that accrued before then stands, whatever your circumstances were while it accrued. Waiting six months to file does not buy six months of relief. It buys six months of arrears.
Property is the opposite, and there is no motion to file at all. Section 452.330.5 RSMo makes the division of marital property “a final order not subject to modification.” Payment terms and security are things to get right while the case is open, because there is no later. Our page on property and asset division covers how the allocation gets made, and our FAQ on dividing marital property covers why equitable never meant equal.
So if the unpaid item is support, the answer to a genuine change in circumstances is a motion to modify, filed and served now, and filing it also changes how a later contempt of divorce decree hearing reads. If it is a property payment, that route does not exist and the conversation is about what you can realistically pay and over what period.
What Do You Have to Prove in a Contempt of Divorce Decree Case?
Two things, and they are short.
Henderson v. Henderson, 389 S.W.3d 260 (Mo. App. E.D. 2012) states the prima facie case as “(1) Husband’s obligation to perform a specific act under the decree, and (2) Husband’s failure to meet the obligation.”
In plain terms, show what the judgment required and show that it did not happen. The same two elements run whether the unpaid item is maintenance or a marital debt, which is a further consequence of Yeager borrowing the support rule.
Which is exactly why drafting decides these cases years before anybody files anything. A specific obligation, a stated amount to a stated person by a stated date, proves itself. A general assignment of responsibility for marital debts leaves you arguing about what was required before you ever get to whether it was done.
A hold harmless clause changes the picture too, and the exact wording of one matters more than the label on it.
What Is the Defense to Contempt?
Inability to pay, and once the prima facie case is made the burden of coming forward sits with the person facing contempt.
Henderson puts it this way. “Once a prima facie case is established, the contemnor bears the burden of proving his inability to perform and showing that his noncompliance was not an act of contumacy.” Contumacy means deliberate, defiant disobedience.
So the structure of a contempt of divorce decree hearing is simple even when the facts are not. One side shows the obligation and the failure. The other side explains why compliance was not possible and why the failure was not defiance. Stanhope says the same thing from the bench’s side, requiring the court to be satisfied of present ability before imprisonment, so this defense carries the same weight on a support claim as it does on a debt claim.
Genuine hardship and quiet avoidance produce very different records, and the records are the case. Pay stubs, bank statements, a termination notice, medical bills, job applications and an honest account of what assets exist all belong in the file before a hearing, not after it. Our FAQ on the statement of income and expenses covers the form that captures most of it, and our FAQ on debt run up after separation covers why financial conduct in that window gets scrutinized.
If the unpaid item is support, the same evidence does double duty. A record that shows a real inability to pay is also the record a motion to modify runs on, and filing that motion is itself evidence that the failure was not defiance.
Is Contempt of Divorce Decree the Best Way to Collect a Debt?
Frequently not, and reaching for it first is a common and expensive instinct.
Contempt fits a former spouse who can pay a clear order and will not. It fits badly where somebody is genuinely insolvent, and it fits badly where the judgment already hands you a faster tool. Section 452.325.5 RSMo opens up several.
- Income withholding where the unpaid item is child support or maintenance, under Section 452.350 RSMo
- Ordinary judgment collection where the obligation is a fixed sum of money
- Enforcement of an indemnity where the judgment contains a promise to reimburse or protect
- Realizing on security where the agreement created a lien, an escrow or another form of security
- Contempt where the evidence supports a willful violation of a clear order
Which one works depends on the drafting and on what the other person owns or earns, and it depends most of all on whether the unpaid amount is support or property. Support arrives with a collection mechanism already attached. A property payment does not, and whatever the judgment built into it is what you have.
What Does Contempt of Divorce Decree Not Do?
Three things, and the first one ends more cases than the rest combined.
It does not rewrite the lender’s contract. In Barth v. Barth, 372 S.W.3d 496 (Mo. App. W.D. 2012), the Western District observed that a spouse “may well remain liable on the debts as they are owed to third parties not bound by the Judgment,” even where the other spouse was ordered to seek her release and to indemnify her.
That is the whole shape of it. In Wright v. Wright, 1 S.W.3d 52 (Mo. App. W.D. 1999), quoting Hileman v. Hileman, the court described the power as one where “one spouse may be assigned the primary duty to pay off the debt and hold the other spouse harmless on the same.” Between the two of you, that binds. The bank was never in the room. Our FAQ on what a decree does and does not do with a bank covers the consequences.
It does not create money that is not there. An order does not produce income, and a court asked to jail somebody who genuinely cannot pay is being asked to do the thing the Constitution forbids.
And a contempt of divorce decree finding does not settle what survives a bankruptcy, which is the last place the support and property split changes the answer.
Does a Bankruptcy Wipe Out Support the Way It Can Wipe Out a Debt?
No, and the federal statute separates the two in almost the same terms Missouri does.
11 U.S.C. Section 523(a)(5) excepts from discharge any debt “for a domestic support obligation”, which 11 U.S.C. Section 101(14A) defines as a debt “in the nature of alimony, maintenance, or support” of a spouse, former spouse or child. Section 523(a)(15) separately reaches other obligations to a spouse, former spouse or child incurred in the course of a divorce or separation, which is where an assigned debt or an equalization payment usually lands.
Then the two paragraphs part company. 11 U.S.C. Section 1328(a) lists the debts that survive a completed Chapter 13 plan, and the list names paragraph (5) of Section 523(a) and does not name paragraph (15). Support is on the list. The property side of the judgment is not. A bankruptcy lawyer should tell you what that means for your particular filing, because we do not practice bankruptcy law and this is a place where the chapter chosen changes the outcome.
The classification fight is worth understanding for the same reason. Henderson held that a debt does not escape Section 523(a)(15) merely because it is payable to a lender rather than to the former spouse, since “the requirement of Section 523(a)(15) that the debt be owed to a former spouse is met so long as the debts are payable for the former spouse’s benefit.”
Enforcement of support also does not simply stop when a bankruptcy is filed. 11 U.S.C. Section 362(b)(2) carves several family law actions out of the automatic stay, including establishing or modifying an order for a domestic support obligation and collecting a domestic support obligation from property that is not property of the estate. Our FAQ on divorce debts and bankruptcy covers the rest.
Who Can Help With Enforcing a Judgment in St. Louis?
Enforcement is where a judgment either works or turns out to have been words, and which one you have was usually decided at drafting rather than at the hearing. The first question is almost never whether a contempt of divorce decree motion is available. It is which of the four obligations above you are actually holding.
Bardol Law Firm practices only family law and handles support and maintenance enforcement, property and debt division, and post judgment work in St. Louis County, St. Louis City, St. Charles County and Jefferson County. You can read more about marital debt in Missouri, about property and asset division, and about the rest of our family law questions and answers.
You should not have to chase your attorney while somebody else ignores a court order. Every client here has a named paralegal on the file, and we generally return calls within one business day.
Family Law, Simplified.
If a former spouse is not paying what the judgment told them to pay, bring the judgment to the first conversation. Contact Bardol Law Firm or call 314.918.0100.
This page is general information about Missouri law and is not legal advice. Every case turns on its own facts. The choice of a lawyer is an important decision and should not be based solely upon advertisements.