Board Certified Family Law Specialist Matt Arnold answers the question: “What is an Absolute Divorce?”
If you have been through a divorce you understand that interaction with the legal system is a requirement. No matter how agreeable you and your ex might be, a judge will still have to be involved. Someone, maybe not you, but your attorney, will have to set foot in a courtroom. Formal papers will need to be submitted to clerks. Hearings and deadlines and other judicial-related hoops will need to be jumped through. And that’s if things are reasonably cooperative. If you and your ex are at each other’s throats the justice system can become much more invasive.
A good example of just how invasive the justice system can be comes from Colorado. A recent investigation by a Denver news station uncovered multiple cases where a party to a divorce dispute gets thrown in jail by a magistrate without the kind of oversight that most people would think is required before such extreme action is taken. The news station dubbed the practice “no bail jail” because unlike when people are arrested and charged with criminal offenses, there is no easy way out of lockup, no bail to be paid. Instead, the person is only released when the magistrate says so.
The issue has at its root Rule 107 of the Colorado Rules of Civil procedure. This rule says that a magistrate judge can hand down jail time and that when it happens, the jail time isn’t technically a criminal matter. In fact, despite being hauled off to jail, most of those caught up in the process have no criminal records or convictions. The only evidence of their time behind bars is typically the mugshot that is required for admittance. The fact that it isn’t technically deemed a criminal matter means that individuals lose some of the protection the criminal justice system normally provides.
So how does something like this happen in practice? A good example concerns a man named Kirk Money. Kirk is a father of two young kids with no criminal record. That said, Kirk has spent six days and nights in county jail, all part of what the magistrate presiding over his case deemed an indirect punitive contempt violation. The incident that resulted in his stay in no bail jail occurred last July 4th when he and his children were away on a short trip to visit his parents. Though Kirk rightfully had the children on the Fourth (the divorce decree gave him even year holidays), he had taken them the weekend before the holiday, something that wasn’t clearly laid out in the visitation agreement. When he and his ex next appeared before a magistrate, Kirk was held in punitive contempt and put in jail for violating the terms of the custody agreement. That means the man was forced to spend 144 hours in custody, all after only a brief hearing on the subject.
How often does this happen and how long can people be sentenced to no bail jail? The answer to both questions is, unfortunately, unclear. The news team that investigated the issue uncovered at least nine cases in Denver last year where people involved in divorce proceedings were sentenced to no bail jail. The problem is that a comprehensive search is very difficult to conduct as there are no formal convictions, only notes in courtroom transcripts. The amount of time someone might be left in no bail jail is also unknown. In some cases, it might be only a few hours. For others, days, weeks and even months behind bars are possible.
Though there are procedural rules in place to prevent abuse, it isn’t clear that they are always followed. At the least, there are troubling inconsistencies with how such laws are applied. Experts say that there have been plenty of cases that were appealed to higher courts that resulted in rulings finding fault in the way that either judges or magistrates used the civil contempt process to throw a party to the divorce in jail. Though the goal of the magistrate is often understandable – to make an uncooperative party cooperate – the means by which this cooperation is secured deserve more careful scrutiny than seems to exist under current law.
If you find yourself facing a complicated family law matter, then you need the help of experienced family-law attorneys in Charlotte, North Carolina who can help guide you through the often confusing process of divorce. Please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.
About the Author
Matthew Arnold is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of family law, divorce, child custody, child support, alimony and equitable distribution.
Mr. Arnold was raised in Charlotte, where he graduated from Providence Senior High School. He attended Belmont Abbey College, where he graduated cum laude, before attending law school at the University of North Carolina at Chapel Hill on a full academic scholarship.
A certified Family-Law Specialist, Mr. Arnold is admitted to practice in all state and administrative courts in North Carolina, before the United States District Court for the Western District of North Carolina, and before the Fourth Circuit Court of Appeals in Richmond, Virginia.
In his free time, Mr. Arnold enjoys golfing and spending time with his wife and three children.
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