In family law matters, court orders for support, maintenance, or alimony are legally binding obligations. When these obligations are not met, the consequences can be severe, potentially leading to findings of contempt and even incarceration. However, the legal system has stringent requirements that must be met before a person can be jailed for failing to pay support. Understanding these critical legal standards is essential for anyone facing such a situation.
The primary framework governing civil contempt proceedings in Florida family law cases is Florida Family Law Rule of Procedure 12.615. This rule makes it clear that civil contempt sanctions are intended to compel compliance with a court order or to compensate a movant for losses, not to punish the offender or vindicate the court’s authority. Criminal contempt, which is punitive, is governed by different rules altogether.
Initiating civil contempt typically begins with a motion that outlines the alleged contemptuous acts. Crucially, no civil contempt can be imposed without proper notice to the alleged contemnor and an opportunity for them to be heard. The notice must explicitly state that “FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A HEARING IS HELD”.
During the hearing, if the court confirms that the alleged contemnor received proper notice, it must then determine whether a prior support order was issued and if the alleged contemnor failed to pay all or part of that support. If these initial requirements are met and the alleged contemnor is present, the court must make a pivotal determination: did the alleged contemnor have the present ability to pay support, and did they willfully fail to do so?
If the court finds an individual in contempt, it must enter a written order containing specific findings. This order must include findings that a prior support order was entered, that the alleged contemnor failed to pay, that they had the present ability to pay, and that their failure to comply was willful. These findings must be supported by a recital of the facts. The court can then impose sanctions to ensure compliance, which may include incarceration, attorneys’ fees, costs, or fines.
However, the most critical safeguard against arbitrary incarceration lies in the “purge” provision of the rule. If the court orders incarceration (or a coercive fine or other coercive sanction), it must set conditions for purging the contempt based on the contemnor’s present ability to comply. Furthermore, the order must include a separate affirmative finding that the contemnor has the present ability to comply with the purge conditions and the factual basis for that finding. The court may allow a reasonable time to meet these conditions. If incarceration is deferred and the contemnor fails to comply, an affidavit of noncompliance is filed, and a writ of bodily attachment may be issued, requiring the contemnor to be brought before the court within 48 hours for a review of their present ability to pay the purge. The court retains the power to review and modify purge conditions and incarceration duration at any time.
These strict requirements were recently highlighted in the case of Kelly v. Kelly. In this case, Jeffery S. Kelly, the Former Husband, was found in contempt for willfully and substantially violating an order to pay alimony to Natalie A. Kelly, the Former Wife, and faced incarceration if he failed to pay the arrearage. However, the appellate court found that the trial court’s order was “facially deficient” because it failed to include an affirmative finding that the Former Husband had the present ability to pay the arrearage to purge himself of the contempt. Citing Bowen v. Bowen [471 So. 2d 1274, 1280 (Fla. 1985)], the Kelly court emphasized that a trial court cannot incarcerate a civil contemnor without an affirmative finding of their ability to pay the purge amount. As a result, the portion of the order imposing incarceration was reversed, and the case was sent back to the trial court to either make the required finding or proceed further. Kelly v. Kelly, No. 5D2024-3531, 2025 WL 1909545, at *1 (Fla. 5th DCA July 11, 2025)
While Florida Statute 61.14 broadly addresses the enforcement and modification of support, maintenance, or alimony agreements or orders, the specific process for imposing civil contempt, especially incarceration, for non payment is detailed and strictly regulated by Florida Family Law Rule of Procedure 12.615. This statute also covers how support or alimony agreements might be modified due to changed circumstances or financial ability, including factors such as a supportive relationship or retirement [1, 2, 3c, 4a-j]. However, even if a support order is in place, the path to incarceration for non-compliance remains highly guarded by the due process requirements within Rule 12.615.
In sum, while jail time is a potential consequence for willfully failing to pay court ordered support, it is not a simple or automatic outcome. The law, as demonstrated by Rule 12.615 and reinforced by cases like Kelly v. Kelly, demands clear and specific findings by the court regarding a contemnor’s willful failure and, crucially, their present ability to pay a purge amount before incarceration can be imposed. These protections are fundamental to ensuring fairness in the enforcement of support orders. If you are facing civil contempt proceedings for unpaid support, or if you are seeking to enforce a support order, it is imperative to seek knowledgeable legal counsel to understand and protect your rights.
Anthony Meehan Genova is a highly qualified legal professional specializing in family law, particularly known for his extensive experience in trial and his commitment to community service.
Mr. Genova is Board Certified in Marital & Family Law. This certification, widely regarded as the “gold standard” for Florida lawyers, signifies Florida’s official, independent determination of a lawyer’s expertise to practice in a specialty field of law. The Board Certification program, overseen by The Florida Supreme Court and administered by The Florida Bar, rigorously evaluates all board-certified lawyers for credibility, expertise, professionalism, and ethics.
To achieve this esteemed certification, Mr. Genova demonstrated a dedication to achieving a heightened level of excellence through character, professionalism, ethics, and credibility. The rigorous process requires at least five years of practice, substantial involvement in the chosen area, successful passing of a comprehensive examination, and a rigorous peer-review process. Additionally, board-certified lawyers must satisfy continuing legal education requirements that are more robust than those for general licensure. This certification is valid for five years and requires continued practice and attendance of Florida Bar
approved continuing legal education courses for recertification. As of 2023, fewer than 5,000 lawyers in Florida (only 5% of eligible Florida Bar members) have earned board certification. Clients retaining a board-certified lawyer like Mr. Genova gain access to specialized expertise, professionalism & ethics, credibility, and a heightened dedication to excellence, offering assurance of a heightened level of proficiency in Marital & Family Law.
In addition to his board certification, Mr. Genova has been a Supreme Court Certified Marital & Family Law Mediator since 2019.
He has been a dedicated member of the Executive Council of the Family Law Section of the Florida Bar since 2016. His significant involvement within this section includes various leadership and committee roles, demonstrating a deep engagement with the evolution and practice of family law: