Body Attachments In An Illinois Divorce Court
Divorce law is funny in Illinois. We say “dissolution of marriage” instead of “divorce,” we say “maintenance” instead of “alimony,” and we say “body attachment” instead of “an order for arrest.”
A body attachment is a big deal! A body attachment is an Illinois court saying, “if you don’t follow our rules, we will lock you up until you do.”
The court does not have an absolute power to lock people up, however. There are strict rules that an Illinois divorce court must follow if it wishes to put someone in jail.
What Leads Up To A Body Attachment In An Illinois Divorce?
Before a body attachment can be issued by an Illinois court, there must be a finding of contempt.
There are four kinds of contempt in Illinois: direct criminal contempt, indirect criminal contempt, direct civil contempt and indirect civil contempt.
Direct criminal contempt is a person doing something outrageous in front of a judge so that the judge “directly” sees the contemnor and immediately imprisons him for his bad behavior. No need to issue a body attachment as the contemnor is right there in front of the court. The officer (a bailiff in other states) is there at the court’s disposal for the exact purpose of restoring order by placing the unruly into immediate custody.
Indirect criminal contempt is where the court hears about a contemnor doing something outrageous outside of the court room. It is criminal contempt to diminish the “dignity and authority of the court” Peo. ex Rel. Chi. Bar Assoc. v. Barasch, 21 Ill. 2d 407, 173 N.E.2d 417 (Ill. 1961).
But, if the judge did not see the bad behavior, it happened “indirectly.” Then the judge has to conduct a hearing to make sure the contemptuous behavior actually happened.
“The respondent in a…criminal contempt proceeding is entitled to information on the nature of the charge, an opportunity to answer, the privilege against self-incrimination, the presumption of innocence, and the requirement of proof of guilt beyond a reasonable doubt.” In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404 (Ill. App. Ct. 1990)
In order to conduct this hearing, the court can issue a body attachment but because it’s a criminal action, they’ll call it a warrant. The criminal nature of the contempt means the contemnor is entitled to a lawyer to defend themselves from what is essentially a criminal charge.
Civil contempt is NOT about the dignity of the court. Civil contempt is about ensuring that people follow court orders. “Civil contempt is a sanction or penalty designed to compel future compliance with a court order.” Felzak v. Hruby, 226 Ill. 2d 382, 391, 876 N.E.2d 650, 657 (2007)
Direct civil contempt would be a contemnor stating to the court “No. I am not going to follow your order.” The judge can have the sheriff in the court immediately seize the contemnor without any special hearing. After all, the judge saw the contempt themselves.
Indirect civil contempt is when someone disobeys a court order outside of the court house. Clearly, 99% of all instances of contempt are indirect civil contempt. Body attachments by their nature, can only occur in the event of an indirect civil contempt of court. Furthermore, it is important to make this distinction because the indirect and the civil nature of the contempt will impact the terms of the body attachment.
Upon a finding of contempt, the contemnor will be given a “purge.” A purge is an action (usually a payment on what is owed) that will keep the court from issuing a body attachment.
“Whether for direct or indirect civil contempt, the order must specify what the contemnor is required to do, so that by compliance contemnor can purge himself of contempt and be discharged from jail.” Pancotto v. Mayes, 304 Ill. App. 3d 108, 112, 709 N.E.2d 287, 290 (1999)
“[A] court in any civil contempt proceeding must allow the contemnor an opportunity to purge his contempt. The purging provision in any civil contempt sanction for nonpayment must be based on the contemnor’s ability to pay.” In re Marriage of Dunseth, 260 Ill. App. 3d 816, 828 (Ill. App. Ct. 1994)(Citations Omitted)
Failure to “purge the contempt” will usually result in the court issuing a body attachment.
“The conduct sought to be coerced by civil contempt proceedings…[t]he most familiar example is jailing a former spouse who, although able to do so, fails to make timely child support or maintenance payments.” In re Marriage of Betts, 200 Ill. App. 3d 26, 44 (Ill. App. Ct. 1990)
Body Attachments For Child Support And Alimony In Illinois
“In any proceeding to enforce an order for support, where the obligor has failed to appear in court pursuant to order of court and after due notice thereof, the court may enter an order for the attachment of the body of the obligor. Notices under this Section shall be served upon the obligor by any means authorized under subsection (a-5) of Section 505.” 750 ILCS 5/713(a)
Subsection (a-5) of Section 505 states that a simple letter is all that’s required for sufficient notice of a body attachment.
“[N]otice…may be served on the obligor by personal service or by regular mail addressed to the last known address of the obligor.” 750 ILCS 5/505(a-5)
After that, “[t]he attachment order shall direct the Sheriff of any county in Illinois to take the obligor into custody” 750 ILCS 5/713(a)
Typically, the body attachment gets registered with the Sheriff of whatever county the contemnor lives in. In my experience, every county’s Sheriff’s office has different procedures for executing body attachments. Sheriffs from counties all over the United States communicate with each other in order to execute each other’s warrants and body attachments. So, if your contemnor lives outside the state of Illinois, the Sheriff of your county will forward the body attachment to the out-of-state county.
When the Sheriff finally finds the contemnor, the sheriff puts him or her into custody and delivers them to the court that issued the body attachment as soon as possible. “If the obligor is taken into custody, the Sheriff shall take the obligor before the court which entered the attachment order.” 750 ILCS 5/713(b)
Sometimes it takes a long time to get from the place of arrest to the court that issued the body attachment (especially if it’s a weekend). So, in support cases, the contemnor can get out of jail if he pays a minimum amount of the support that is owed. “[T]he Sheriff may release the person after he or she has deposited the amount of escrow ordered by the court pursuant to local procedures for the posting of bond.” 750 ILCS 5/713(b)
The amount that must be paid in order to be released in advance of court shall be an “amount of escrow which is equal to a minimum of 20% of the total child support arrearage alleged by the obligee in sworn testimony to be due and owing.” 750 ILCS 5/713(a)
Once the contemnor/obligor is released, “the Sheriff shall advise the obligor of the hearing date at which the obligor is required to appear.” 750 ILCS 5/713(b)
If the contemnor/obligor doesn’t show up for that court date, the whole body attachment process starts all over again.
If the contemnor/obligor does appear in court “the court shall: hold a hearing on the complaint or petition that gave rise to the attachment order. For purposes of determining arrearages that are due and owing by the obligor, the court shall accept the previous sworn testimony of the obligee as true and the appearance of the obligee shall not be required. The court shall require sworn testimony of the obligor as to the last 4 digits of his or her Social Security number, income, employment, bank accounts, property and any other assets.” 750 ILCS 5/713(d)(1)
So, the contemnor/obligor can’t even say “I don’t owe that!” The contemnor/obligor must immediately disclose their income and assets, presumably for garnishment or attachment.
But, if the contemnor/obligor disputes the amount of the arrearage, the disputed amount will be dealt with later while “the court shall proceed as in any other case as to the undisputed amounts” 750 ILCS 5/713(d)(1)
This applies to all support even though child support alone is repeatedly mentioned. “This Section shall apply to any order for support issued under the “Illinois Marriage and Dissolution of Marriage Act”, approved September 22, 1977, as amended; the Illinois Parentage Act of 2015” 750 ILCS 5/713(f)
So, if you owe child support or maintenance in Illinois and you’ve fallen behind on payments, you are one letter away from going to jail.
The contemnor won’t go to jail forever, though. In Cook County, the rules require that a contemnor be allowed to leave jail…to visit the court handling his case every 30 days. “Every order remanding a contemnor to the custody of the Cook County Department of Corrections for indirect civil contempt must include a provision that the contemnor will be returned to the court for status at periodic intervals, but in no event less frequently than every thirty (30) days.” Cook County Court Rule(a)(vii)
These body attachments are no joke. The court is under no obligation to release the contemnor from jail unless they pay what is owed. A downpayment is possible, a payment plan can be arranged but NOTHING is guaranteed.
Body Attachments For Everything Else In Illinois
It is a lot more difficult to get a body attachment for any debt owed that isn’t child support or maintenance related.
A body attachment will not occur in any other case unless there has been personal service and a full hearing.
“No order of body attachment or other civil order for the incarceration or detention of a natural person respondent to answer for a charge of indirect civil contempt shall issue unless the respondent has first had an opportunity, after personal service or abode service of notice as provided in Supreme Court Rule 105, to appear in court to show cause why the respondent should not be held in contempt.” 735 ILCS 5/12-107.5
Even if the body attachment is issued and the sheriff picks the contemnor up, the bond the contemnor must pay to be released can NOT be higher than $ 1000.
“The first order…directed to a respondent may be in the nature of a recognizance bond in the sum of no more than $1,000.” 735 ILCS 5/12-107.5(d)
This is pretty toothless and a massive hassle for enforcement. The statute even acknowledges how pathetic non-support body attachments are. “The requirements or limitations of this Section do not apply to the enforcement of any order or judgment for child support” 735 ILCS 5/12-107.5(f)
If brought to court on a hearing to determine if a body attachment should issue, the alleged contemnor must show that “the violation was not willful and contumacious and that he or she had a valid excuse for failing to follow the order.” In re Marriage of Knoll, 2016 IL App (1st) 152494, ¶ 50, 65 N.E.3d 878. Saying, “I can’t pay and this is why” is enough to be released until a future court date and another excuse.
This is why all financial aspects of a divorce must be finalized on the eve of the entry of the Judgment of Dissolution of Marriage. Enforcement of non-support issues is exceedingly difficult.
Even if the body attachment is executed, the contemnor has the ability to immediately be released upon compliance with the order. “They are imprisoned only until they comply with the orders of the court, and this they may do at any time. They carry the keys of their prison in their own pockets.” In re Nevitt, 117 F. 448, 460 (8th Cir. 1902)
So, the worst that can happen to them is that they follow the order they were breaking (and maybe some attorney’s fees)
In the case of parenting time issues or other matters related to children, a body attachment is almost never the preferred solution. Instead, parenting time is either curtailed, removed entirely or supervised until it becomes clear to the court the contemptuous parent is willing to follow the court’s orders.
Body Attachments And Discovery
Body attachments aren’t just for opposing parties who violate orders. Third parties who aren’t even part of the case can get a body attachment…if they don’t respond to discovery requests.
Illinois law empowers lawyers to ask third parties for documents or testimony related to the case via subpoena or deposition. If those third parties choose not to cooperate, the Illinois Supreme Court rules empower the requesting attorney to request a body attachment to compel the third party’s cooperation.
“An order of body attachment upon a nonparty for noncompliance with a discovery order or subpoena shall not issue without proof of personal service of the rule to show cause or order of contempt upon the nonparty.
(2) The service of the rule to show cause or order of contempt upon the nonparty, except when the rule or order is initiated by the court, shall include a copy of the petition for rule and the discovery order or subpoena which is the basis for the petition for rule.
(3) The service of the rule to show cause or order of contempt upon the nonparty shall be made in the same manner as service of summons provided for under sections 2–202, 2–203(a)(1) and 2–203.1 of the Code of Civil Procedure.” Ill. Sup. Ct. R. 204(d)
The only limitation on this ability to lock up complete strangers who don’t answer their mail is permission from the court and proper service.
Body attachments are a big deal but, in some cases, body attachments are an empty-ish threat. Make sure your divorce lawyer knows the difference. Contact my Chicago, Illinois family law firm to discuss the ramifications of violating a court order with an experienced Chicago divorce attorney.