Maybe yes, or maybe no. The fact that such a large indebtedness exists, in and of itself, is not the determining factor that may lead to incarceration. The court must first determine how much of that debt can be presently paid by the obligor. This amount becomes the “key” to the jailhouse cell for the obligor.
This principal for asserting civil contempt in family law cases was established by the Florida Supreme Court, in the case of Bowen v. Bowen, 471 So.2d 1274, 1278-79 (1985). The Bowen case requires a two step analysis. First, the court must determine if the obligor, who is behind in his payments, has willfully violated the court order for support; and second; the court must determine an appropriate remedy which is to be imposed in order to compel the defaulting individual to comply with the court’s orders.
If the court wishes to incarcerate an individual for willfully failing to pay support, an affirmative finding must first be made to determine what the present ability is to meet a purge condition. A purge is generally a dollar amount that the defaulting party has the “present and current ability” to pay. Once that amount has been determined, the obligor or defaulting party can either pay or go to jail; his or her release will be subject to the payment of the purge established by the court.
Quite frequently, the purge payment represents a very small percentage of the support that is actually owed. It could literally be pennies on the dollar.
A recent case from the 3rd District illustrates the principals involved in jailing an individual for non payment of support. See the case of Aburos v. Aburos, Case No. 3D08-2808, decided on April 21, 2010. The former husband owed $319,828.00 in child support payments. He was found in willful contempt, and was ordered to be taken into custody. The court established a purge amount of $25,000.00, which amount would represent the” key to his cell”. On appeal, the appellate court ruled that it was simply error to establish a “purge amount” when there was no evidence in the record that the former husband had the “current and present ability” to pay the amount as ordered by the court.