jail for failure to pay child support

You can definitely be put in jail for not paying child support in Chicago, Illinois…but it takes a while.

Petition for Rule To Show Cause

An order for child support is a court order like any other order from the court. If child support is not being paid pursuant to that order, then the order is violated.

At this point, two things can happen:

1) The parent who receives the child support can file a petition for rule to show cause the obligor not be held in contempt of court for failure to pay child support. This is essentially asking the court to hold the child support payor in contempt of court for failure to pay support.
2) The Cook County State’s Attorney can file the same motion on behalf of the child support receiver. The Cook County State’s Attorney gets involved if the child support receiver is getting any kind of benefits from the state. The most common benefit that triggers this is if a child receives KidCare (health care coverage for kids provided by the State of Illinois).

It may seem like the Cook County State’s Attorney prosecuting you for failure to pay child support means you’ll go to jail. In fact, it means exactly that.

But, you are just as likely to go to jail when a parent privately files their petition for rule to show cause. The petition for rule to show cause is the same petition that the Cook County State’s Attorney files on behalf of that parent.

The petition for rule to show cause should be called something clearer like “Petition for contempt” but the reason “rule to show cause” is referred to is because the alleged order violator must prove they are innocent (a very unusual situation in American justice)

When the petition is filed, a court date is set and the court will announce that “the rule shall issue.” At that moment, the burden to prove that the alleged violator is not in violation shifts from the accuser to the accused.

Being Held In Contempt

When the rule is issued after a prima facie showing that the order was violated (which can be any allegation that child support is missing or late) the alleged violator must prepare for a hearing on the petition for rule to show cause.

The alleged violator is presumed to have violated the order and must show that if he or she did violate the order they did not so “willfully or contumasciously”

Again, petitions for rule use a lot of strange language that make the process seem unclear. Essentially, you must prove that you did not violate the order on purpose.

For example, proving that you could not pay the child support because you were out of work and not able to find work is enough to keep you from being held in contempt of court for not paying child support.

The best way to prove that you did not violate a child support order on purpose is to have paid at last some of the child support. If you owe $ 500 and you paid $ 100, it looks like you are not simply refusing to pay child support.

If a judge finds that you willfully and contumasciously violated the child support order you will be held in contempt of court.

Contempt of Court

“Every finding or adjudication of contempt shall be by written order and shall contain specific findings of fact. In cases involving child support arrears, the order shall state the precise amount of any arrearage found to be due and owing. Upon every finding of contempt that results in incarceration, a form order of commitment provided by the court shall be used.” Cook County Court Rule 13.8(a)(vi)

So, while you are held in contempt, the court must also assess exactly how much the arrearage is. This is a great opportunity to put off a finding of contempt by saying “I know I owe money. I just don’t know how much. Can we please have an accounting review from the Illinois Division of Child Support Services.” This takes at least 90 days and can give you the time you need to catch up and stay out of trouble.

Once you are held in contempt of court, you are stuck in a state of contempt until you have “purged” the contempt (again with the weird words).

A purge is something one must to do to rectify the situation. Typically, for contempt of court for failure to pay child support the purge is a set amount of money to catch up with support owed. Usually, this amount is 20% of what’s owed but the amount is usually up to the judge.

What If I Don’t Pay The Purge?

You’re going to jail until you pay the purge. If you’re not in court for the Cook County Sheriff to take you into custody, the court will issue a “body attachment” which is essentially a warrant for your arrest instructing the Cook County Sheriff to go looking for you and take you into custody.

You will be stuck in jail until the purge is paid with regular visits to court so the judge can see how you’re doing regarding paying the purge.

Again, judges often have a change of heart if you pay at least some of the purge. If the purge amount is set at $ 2000 and you come to court with $ 1000, a judge is likely give you more time to pay the balance. I always tell my clients, “if you don’t bring any money, don’t bother to wear a belt or shoe laces because the Sheriff will take those from you when you go to jail.”

The Cook County Sheriff Can’t Arrest Me If I’m Not in Cook County, Right?

If a body attachment has been issued to the Cook County Sheriff for your arrest, the Cook County Sheriff is responsible for taking you into custody.

However, this is not like the Dukes of Hazzard where you can cross the county line while the Sheriff is forced put on brakes on while chasing you. The Cook County Sheriff merely asks the county you’re in to take you into custody.

Additionally, body attachments will be enforced by States outside of Illinois as all states have adopted the Uniform Interstate Family Support Act.

If you owe over $ 2,500 of child support and that arrearage has been registered with the State Department, your passport will be revoked and you won’t be able to leave the country and ever return to the United States.

Is Not Paying Child Support A Crime In Illinois?

While 99% of non-payment of child support cases are resolved in the civil divorce courts via the petition for rule to show cause, failure to pay child support is a crime in Illinois.

“A person commits the offense of failure to support when he or she:

willfully, without any lawful excuse, refuses to provide for the support or maintenance of his or her spouse, with the knowledge that the spouse is in need of such support or maintenance, or, without lawful excuse, deserts or willfully refuses to provide for the support or maintenance of his or her child or children in need of support or maintenance and the person has the ability to provide the support…A person convicted of a first offense under subdivision (a)(1) or (a)(2) is guilty of a Class A misdemeanor. “ 750 ILCS 16/15”

I’ve been practicing family law for over 13 years and I have never had one of my own clients been criminally charged but I have seen it happen.

Not Paying Child Support Is A Federal Misdemeanor And/Or Felony

If you live in one state and the child lives in another, the federal government can get involved and they are even more strict than Illinois.

A parent is subject to federal prosecution if he or she willfully fails to pay child support that has been ordered by a court for a child who lives in another state, if the child support payment is past due for longer than 1 year or exceeds the amount of $5,000. A violation of this law is a criminal misdemeanor, and convicted offender face fines and up to 6 months in prison (See 18 U.S.C. § 228(a)(1)).

If the child support payment is overdue for more than 2 years or the amount is in excess of $10,000 it is a federal criminal felony, and convicted offenders face fines and up to 2 years in prison (See 18 U.S.C.§ 228(a)(3)).

How Do I Avoid Going To Jail For Failure To Pay Child Support?

The easiest way to not be in violation of an order is to simply change the order.

If there has been a substantial change of circumstances you may file a motion for modification of child support.

Child support is based off of both parents’ incomes and the needs of the child(ren). So, if there has been any change in either parents’ income or in the needs of the child(ren) then a substantial change of circumstances has occurred.

Illinois courts typically reward parents who come in with a motion to modify child support as they are being proactive instead of building up a massive child support arrearage which will have to be dealt with later.

You don’t want to go to jail. The courts don’t want you to go to jail. The other parent doesn’t even want you to go to jail. Everyone just wants to make sure the child is getting the support he or she is entitled to. So, change the entitlement and everyone will be happy.

Other Penalties for Nonpayment of Child Support Besides Jail

“Deadbeats most wanted list.
(a) The Director may disclose a “deadbeats most wanted list” of individuals who are in arrears in their child support obligations under an Illinois court order” 305 ILCS 5/12-12.1

Believe it or not, the State of Illinois will publish your name as a “deadbeat parent” on their website. They’ll even include a photo of you. This will definitely come up in any google search of your name.

In addition, the Secretary of Illinois can suspend a driver’s license if they receive a report that a parent is more than 90 days delinquent. In this situation, the solution is to just admit to the arrearage and put the arrearage amount on a payment plan. The Secretary of state perceives this as being current for the purposes of reinstating a driver’s license.

To learn more about child support enforcement contact my Chicago, Illinois law firm today to speak to an experienced Illinois family law attorney.

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