THE PETITION FOR RULE TO SHOW CAUSE AND ENFORCEMENT OF COURT ORDERS Under The Illinois Marriage And Dissolution Of Marriage Act (“IMDMA”)
Violations of Court Orders
A typical divorce case will generally be comprised of a series of court orders granting the parties certain rights as to each other and their children, such as temporary visitation and custody orders, temporary support orders, orders requiring disclosure of documents or information, etc. More importantly, even if a divorce is resolved by way of a settlement agreement, that agreement is not just a contract, but becomes a judgment adopted by the court. Hence, any violation of the myriad of provisions provided for in a divorce settlement is not just a breach of a contract, but a violation of a court order.
Indirect Civil Contempt
Any action that disrespects the authority of the court is contempt of court. Contempt can be direct or indirect. Direct contempt is a disrespect of the court’s authority in the presence of the Court (e.g., a witness insulting the judge or court staff). Indirect contempt is something that occurs outside the courtroom, such as a violation of a court order. Contempt is also either civil or criminal. The distinction is the purpose behind the penalty for contempt. If the purpose is to coerce a party into acting, it is civil; if the purpose is to punish, it is criminal.
A typical violation of a divorce judgment or order is indirect civil contempt because the violation (e.g., non-payment of support) takes place outside the court’s presence. The purpose of indirect civil contempt is to compel compliance with the order. Thankfully, a person found in civil contempt must be given an opportunity to “purge” the contempt by complying with the court’s order. Therefore, a person who is behind on child support payments can set themselves straight with the court by bringing their obligation current. There is no right to a trial by jury on an indirect civil contempt proceeding or hearing.
Attorneys Fees for Willful Violations
Section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) states that the court “shall” order the party who violates a court order willfully and without substantial justification to pay the reasonable attorney’s fees of the party seeking to enforce the violated order. This provision is a handy tool for aggrieved parties, providing some hope that they will be compensated for having to initiate legal proceedings. However, there are practical concerns with this provision. First, courts do not apply this provision uniformly; some courts award fees in a near draconian matter while others will reduce fees to an arbitrary “reasonable” amount depending on the circumstances of each case. Further, collecting attorney’s fees from parties who generally cannot meet their child support or maintenance obligations can be a losing proposition.
Punishment for Contempt
A court will try to provide as many opportunities for a party to purge an order of contempt. However, if a party simply refuses to comply, the court has the power to impose fines, attorney’s fees, and even imprisonment. Many an unsuspecting litigant representing themselves before the court have been taken into custody for repeatedly failing to comply with a Court’s orders. The court’s imprisonment powers have their limits; if it becomes clear that a party will not comply even though they have been incarcerated for a lengthy period of time, the incarceration becomes punitive, the contempt becomes criminal, and the imprisoned party is entitled to greater due process rights (i.e., right to counsel, trial by jury, and a greater burden of proof).
The most common and effective defense to possible contempt is lack of willfulness. The classic example is failure to pay maintenance or child support. If a party loses his or her job and does not have enough money to pay the support payments, this would help show that they did not violate the Court’s order “willfully and without substantial justification.” Of course, if an issue arises with the ability to pay support, a party should seek legal assistance or petition the court for a modification immediately to avoid any potential pitfalls.