Enforcement of Alimony or Property Settlement Orders
Each District Court has specific local rules that may apply in your case. Check with the clerk of the district court in your county. If you do not follow the local rules, you may not be able to finish your case.
When this Pleading is Used
An action to enforce a court order is called a contempt action. You are asking the judge to hold in contempt the person who is not obeying the court order. If you are successful in showing that the person willfully disobeyed the court order, the judge can put the person in jail until that person has followed a plan to "purge" himself or herself from contempt. For example, if a person has not followed an order for the payment of alimony, the judge can hold the person in contempt, sentence the person to jail, and then give the person a chance to stay out of jail and obey the order by following a plan to make regular payments to bring the payments current.
Enforcement proceedings can be complicated. It is up to you to decide whether and how you use a lawyer in enforcing orders already entered by the court. The law allows you to do enforcement actions by yourself, which is also known as proceeding pro se (pronounced "pro-say").
Because a contempt action could result in the other person being put in jail, the court may appoint a lawyer to represent the person if the court is convinced the person is poor and cannot afford to hire a lawyer. The court cannot appoint a lawyer for you, however. If the court appoints a lawyer for the other side, that will make it much harder for you to do the case by yourself, so it is important for you to think carefully about whether you should try to enforce the court order without using a lawyer.
This packet of forms and instructions is intended only for cases where:
- a person who was ordered to do something as part of a property settlement, has not done what they were supposed to do.
- a person who was ordered to pay alimony has not made the payments as ordered.
Forms and Filing
Forms
Complete list of forms and instructions.
Filing the Forms
File your paperwork in the district where the original order was entered. You will file your papers with the clerk of the district court. Take these documents to the clerk:
Affidavit and Application for Order to Show Cause (DC 6:5.42)
Order to Show Cause (DC 6:5.21)
- Follow the Instructions for Completing the Order to Show Cause (DC 6:5.21a)
- When you file your Affidavit and Application for Order to Show Cause, you should also take with you the Order to Show Cause. You will have to file the Affidavit and Application with the clerk of the district court. Then, you or the clerk will take the Order to Show Cause and the Affidavit and Application to the judge. The clerk will tell you whether you or the clerk will need to give the papers to the judge. The judge will look at your Application and Affidavit. If the judge agrees with your application, the judge will sign the Order to show Cause. The clerk will tell you how to get a hearing date and time. Different courts have different procedures. Sometimes the judge sets the hearing date. Other times the clerk sets the hearing date. If either party needs an interpreter for the court hearing, please tell the court staff at the time you schedule the hearing. If the judge signs the Order to Show Cause, you will receive it back from the judge. You must then serve the order on the person you believe has failed to follow the court's order.
Asking the Court to waive service fees:
- There is no filing fee to file the Affidavit and Application for an Order to Show Cause. There will be a cost to have the sheriff serve the other party with the order. If you do not have enough money to pay the sheriff's fees, you can ask the judge to excuse you from paying the fees. See the packet entitled "Proceeding Without Payment of Fees in Contempt Actions." The packet has forms and instructions to help you ask the judge to waive the fees and have the county pay those costs.
Giving Notice of the Contempt Action to the Other Party
If the judge signs the Order to Show Cause, you must give formal notice to the other party – the party you believe has not followed the court order. This "official" notice is called "service of process."
NOTE: YOU MUST SERVE THE PERSON WHO YOU BELIEVE IS NOT OBEYING THE COURT ORDER BY HAVING THE SHERIFF GIVE TO THAT PERSON A COPY OF THE ORDER TO SHOW CAUSE.
- Praecipe for Service: The Praecipe is a request that the court have the Order to Show Cause served on the person you believe is disobeying the court order to pay alimony or to comply with a property settlement.
- You must have the other party served by the sheriff in the county where that person lives.
When you live in the same county as the other party, here is how you do it:
- Follow these Instructions for Completing the Praecipe (DC 6:5.22a) (pronounced "pres-si-pee"),
- File the Praecipe with the clerk of the district court where you filed your original action.
- Call the clerk or local sheriff to find out how much it costs to have the sheriff serve the other party. Take the payment (money order, check, cash) required, made out to the sheriff, with you when you file the Praecipe.
- If the judge waived the service fees for you, be sure to attach a copy of the Order to Proceed in Forma Pauperis (DC 6:7.2) (without payment of fees) signed by the judge so the county will pay the sheriff’s bill for serving the Order to Show Cause.
- The clerk will send the Order to Show Cause and money order to the sheriff. The sheriff will try to serve the other party with the Order to Show Cause.
- This is an example where each district court may have specific local rules. Check with the clerk of the district court in your county to be sure this is the way the county that you filed in gives the Order to Show Cause to the sheriff.
- The Order to Show Cause tells the other party when to appear in court to show why they should not be held in contempt for disobeying the court order previously entered for visitation.
- You should list all addresses in the Praecipe where the sheriff might be able to find the other party, including that person's home and/or work addresses. If that party is usually at a location during certain hours, you can list that in the Praecipe.
- If the judge granted your Application to Proceed In Forma Pauperis, attach a copy of that Order to the Praecipe.
Does it make a difference if the other party and I live in different counties?
If you are asking the sheriff to serve the other party, the answer is “yes.”
If the other party lives or works in a different county in Nebraska or in a state other than Nebraska, here is what you do:
- If the person you are trying to serve lives or works in a different county in Nebraska or in a state other than Nebraska, you must pick up the signed Order to Show Cause from the clerk once it is ready. Ask the clerk when you bring in the proposed Order to Show Cause about how long it will take to have the order signed and the hearing date set.
- Find out the address and phone number of the sheriff’s office where you must mail the Order to Show Cause.
- If you do not know the address or phone number of the sheriff’s office, the clerk may be able to provide that to you.
- If the clerk cannot provide it to you, you will have to find it on your own.
- Before you mail the Order to Show Cause, call the sheriff’s office for county where the other party lives.
- Find out how much it costs to serve the Order to Show Cause.
- Find out how to pay the sheriff for serving the Order to Show Cause. Some out-of-county sheriffs and most out-of-state sheriffs want payment in advance.
- If the court approved the Application to Proceed in Forma Pauperis, ask the sheriff's office if they will serve the papers without payment in advance.
- You will mail the Order to Show Cause to the sheriff for the county where the other party lives.
- Include a letter explaining to the sheriff that the Order to Show Cause must be personally served on (handed to) the person you are alleging disobeyed the court order for visitation.
- When the sheriff serves the person or if the sheriff is unable to serve the person, the sheriff will return documents to you with a "return of service." The return of service will indicate whether or not the person was served. You must file all of this paperwork with the court, even if the person was not served.
If the other party is not served by the time of the hearing, you should still show up for the hearing. However, the judge may have to dismiss the case or set the hearing for another time.
What Happens After You Give Notice to the Other Party
You must appear in court on the date and at the time indicated in the Order to Show Cause.
For alimony, fill out the Order of Contempt (Alimony) (DC 6:5.45) using the Instructions for Completing the Order of Contempt (Alimony)(DC 6:5.45a).
For a property settlement, fill out the Order of Contempt (Property Settlement)(DC 6:5.46) using the Instructions for Completing the Order of Contempt (Property Settlement)(DC 6:5.46a).
Preparing for the Hearing
Once you are given a hearing date and time, write out and practice what you are going to say in court. A sample of what you might say in court is included in this packet and entitled "Instructions for Your Enforcement Hearing" (DC 6:5.44). It’s okay to write out what you want to say ahead of time and read it when you go to court. Practice what you want to say so that you won’t be too nervous when you go to court.
The Hearing
You must take these documents with you to the final hearing:
- A copy of the original order you want enforced.
- If this is an alimony contempt action, bring a certified copy of the payment history.
- Ask the clerk if you can get a certified copy of the payment history from their office or if you will have to contact the Nebraska Child Support Payment Center to get a copy.
- Two copies of the order you want the judge to sign.
- Your hearing script.
Get to the hearing at least 15 minutes early. Once you get to the courthouse:
- Ask the clerk of the district court where to go, and
- Ask the clerk of the district court how to let the judge know you are there for the hearing.
The judge will come into the courtroom. Stand up when the judge comes into the courtroom. The judge will read your case name and number out loud. There will be a court reporter taking down what everyone says.
The judge may ask you to introduce yourself. Before anything else, give the judge the originals and copies of the Order you want the judge to sign.
Tell the judge you are ready. Ask the judge to swear you in as a witness. The judge will place you under oath. Testify about the facts in your Application and Affidavit for Order to Show Cause.
Remember, you are asking the court to hold the other party in contempt. If the judge signs the Order it means the judge has found the other party in contempt. The judge usually decides on the day of the hearing whether the Order will be signed.
If the judge signs the Order, the judge also will sign the copies of the Order. The judge will give one copy to you. The judge will give the other copy to the other party. If you want an official (“certified”) copy of the Order, ask the clerk of the district court for one. There may be a cost to get an official copy of the Order.
If you do not go to the hearing your case will be dismissed. Then you will have to start over again. If you know you cannot get to court for the hearing, call the court to reschedule the hearing.
Judges do not want to send people to jail. If the court said that the other party is in contempt, the court will give them another chance to obey the Order. This is called a “purge” plan. The court might say the other party has to go to jail, but will give that party time to fix the problem. For example, the court might tell the other party to pay all the alimony due within 10 days or go to jail for 10 days. If the party pays the alimony, they do not go to jail. If the party does not pay the alimony, you can ask the court to send them to jail.
What Happens if a Party Fails to Follow the Purge Plan
If the other party does not follow the purge plan, you may ask the court to send the other party to jail. You do this by filing more papers with the clerk of the district court. Here are the papers you need:
Affidavit and Motion for Bench Warrant and Commitment to Issue
You must complete this document. Please refer to the Instructions for Completing the Affidavit and Motion for Bench Warrant and Commitment to Issue (DC 6:5.47a) for details on how to fill out the Affidavit and Motion.
Bench Warrant
- A bench warrant is a court order to police to arrest someone.
- Fill out the Bench Warrant. Please refer to the Instructions for Completing the Bench Warrant (DC 6:5.33a)
- When you file your Affidavit and Motion, take the Bench Warrant with you.
- File the Affidavit and Motion with the clerk of the district court. Someone has to give the judge the affidavit, motion and Bench Warrant for signing. Ask the clerk whether you need to give the papers to the judge’s staff directly or whether the Clerk will do it. Different courts may have different procedures. Check with your local court on how they do this. If the judge signs the Bench Warrant, you will receive it back from the judge. You must then serve the order on the other person. You should also ask the Clerk if the judge’s staff or the Clerk will give the Bench Warrant to the sheriff for service or if you have to do anything else.
- You can check with the Clerk’s office in a few days to see if the Bench Warrant was served.