“Force majeure” as a defense to family court contempt

Posted Thursday, March 19th, 2020 by Gregory Forman
Filed under Child Support, Contempt/Enforcement of Orders, Not South Carolina Specific, Of Interest to General Public

Given the impact on the new coronavirus on South Carolina businesses, I’ve had more than one client ask me about paying court-ordered support obligations at a time when their income has withered. For clients with the savings to cover a few months worth of these obligations, I tell them to keep paying. For clients who don’t have such savings, I can only inform them that we are in a fluid and (at least for folks who are baby boomers or younger) unprecedented situation.

The legal doctrine of force majeure is typically found in contracts as a provision excusing performance due to an extraordinary event or circumstance beyond the control of the parties. The doctrine has only be cited twice in South Carolina case law, both involving contract disputes. I can find no reported cases anywhere in the United States addressing force majeure as a defense to contempt and only one unreported case, In the Matter of U.S. DOE – Rocky Flats Plant, 1993 WL 854273 (Colo.Haz.Matl.Waste.Mgmt.Div), that even mentions it.

What I assume this means is that case law on this issue is going to start developing throughout the United States some time in the next few years as folks who cannot meet their support obligations employ this doctrine to excuse their non-compliance. While work has slowed for most family law attorneys the past week, the general consensus is that when the quarantine ends business will boom. For family law attorneys who do appellate practice, force majeure claims may be part of that boom. And don’t even ask me to predict how our appellate courts will ultimately resolve this.

2 thoughts on “Force majeure” as a defense to family court contempt

  1. David Alan Wilson says:

    I suspect that it just go to the willfulness analysis.

    1. Agreed. However force majeure may get the claim of “lack of willfulness” greater consideration.

      My experience during the 2008–09 Great Recession is that Family Court Judges were not giving the economic downturn much weight in finding folks in contempt for not paying their support obligations – even if those folks became unemployed.

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