In family law cases, violating court orders is common and it is important to understand that there are different types of violations of family law court orders with different consequences. From child custody to child support orders and discovery demands and financial issues, different types of violations are dealt in a different manner. Thus, the way in which the court will address the violation is dependent upon the type of violation.
So, the first question to answer is “What type of violation of court order is it?”
Indirect Civil Contempt Violations
When the violation is something remedied by encouraging the person violating the court order to act, and their violation takes place outside of the courthouse, that is often Indirect Civil Contempt.
For example, a failure to pay child support could be considered an Indirect Civil Contempt violation. The question of whether or not the violation qualifies as contempt turns on whether the violation is “willful” or not. When someone who has money sitting in a bank account which would have covered their child support obligation, yet they failed to pay it, such a violation shows willfulness and acting in a contemptuous manner.
Additionally, when ordered to pay child support using the money for certain other things instead of child support could be considered contempt. The person violating the order can be coerced into complying with the order by saying, if you don’t pay your child support, you will go to jail until you do. Then, once they pay the support, they have “bailed” themselves out. This type of scenario is prime for consideration as indirect civil contempt.
In these scenarios, a Contempt Petition may be a proper request to produce the desired outcome.
Discovery Violations in Divorce and Family Law Cases
The Discovery process is laid out in the Illinois Supreme Court Rules (“ISCR”). These Rules provide a detailed outline of sanctions (penalties) that can be applied when someone violates the discovery process. Typically, the goal is to obtain the discovery or documents that a person is missing, not punish the person for failing to produce the discovery. (though that is also something that is allowed under the rules). For this type of violation of a court order, a Motion to Compel Compliance with Discovery is more appropriate than a contempt petition. The sanctions allowed under the ISCR’s can be requested, as well as compliance with the discovery requests or orders.
Other Violations of Court Orders in Family Law Cases
There are still other violations of a Court Order which can arise in family law cases. Parenting time interference is one issue. For example, someone who is supposed to have parenting time but misses it due to the other parent’s actions may want to try and enforce their parenting time order. One occurrence might be considered indirect civil contempt, with the purge being allowing makeup time.
But, repeated violations of this nature may constitute indirect criminal contempt, punishable by a set amount of jail time. One cannot “get out of jail” by completing an action, they are serving a jail sentence to punish them for noncompliance. This is different than indirect civil contempt, where the contempt is intended to coerce someone to do something. Some violations cannot be considered any type of contempt; they are a one-time occurrence, and the violation is relative to something that they can no longer be “coerced” into complying with, and it may not be discovery related or criminal. In these scenarios, it may be best to file a Motion to Compel a certain behavior or action, rather than calling it a contempt petition.
Financial Consequences of Indirect Civil Contempt and other Non-compliance
It seems that it would be common sense to most litigants that violating a court order will have negative consequences. That being said, for whatever reason, there are still many, many litigants that purposefully or inadvertently violate court orders in their respective family law cases. What the litigants may not realize is that there may be a high financial cost associated with that.
Attorney’s Fees Associated with Violating a Court Order
There is a specific statute under Illinois law that governs the award of attorney’s fees when a court has a proceeding “for the enforcement of an order or judgment when the court finds that the (litigant’s) failure to comply with the order or judgment was without compelling cause or justification.” This statute is Section 750 ILCS 5/508(b) of the Illinois Marriage and Dissolution of Marriage Act, and it further provides that in such situations “the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party.” There are two keywords to pay close attention to: “shall” and “promptly”.
Get Ready to Pay Attorney’s Fees: Understanding “Shall” and “Promptly”
First, the Illinois Marriage and Dissolution of Marriage Act says the Court “shall“ order which means the law does not allow the Judge discretion in the matter. Thus, if the Judge finds an order or judgment has been violated “without compelling cause or justification”, the person violating that court order can be rest assured he or she will be forced to pay some of the other litigant’s attorney’s fees. These fees potentially are in addition to fees they may already be paying, such as their own attorney’s fees, a Guardian Ad Litem or Child Representative Fees, or even a 604(b) Custody Evaluator’s fees. That can be very, very expensive.
The second keyword is “promptly”. The statute provides that the fees are to be paid promptly. If the litigant that violated the order does not pay the fees within the time mandated by the Judge in the order, there is the possibility of an additional contempt petition being brought against them.
It should also be noted that the statute does not make any reference to the order-violating litigant’s ability to pay the fees. So regardless of the violator’s financial situation, he or she will need to find a way to come up with the funds.
For more than two decades, Anderson & Boback family law attorneys have been solving complex family law needs of clients throughout Chicago and the greater Chicagoland area. If you’re faced with divorce or family law related issues, contact us to schedule a confidential consultation and learn more about dealing with violating court orders.