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Posted on October 12, 2020

Contempt In An Illinois Divorce Case

If you do something wrong in a court case, you could be held in contempt of court.  What is contempt in an Illinois divorce case?

The definition of contempt is broad.

“The act of demeaning the court, preventing justice administration, or disobeying a sentence of the court.” Black’s Law Dictionary (10th ed. 2014)

In Illinois courts can use contempt proceedings for basically any reason.

“A court is vested with inherent power to enforce its orders and preserve its dignity by the use of contempt proceedings.” People v. Warren, 173 Ill. 2d 348, 368, 671 N.E.2d 700, 710 (1996).

The reason for a contempt can be anything, but the actual contempt proceeding must follow the rules.

“The procedures that must be followed in contempt proceedings vary according to the type of contempt at issue.” In re Marriage of Weddigen, 2015 IL App (4th) 150044, ¶ 19, 42 N.E.3d 488.

There are four kinds of contempt proceedings in an Illinois divorce case. “Contempt may be either direct or indirect and either civil or criminal.” In re A.M., 2020 IL App (4th) 190645

What Is Criminal Contempt Of Court In An Illinois Divorce Case?

Criminal contempt is where a punishment has been handed out by the court for something that has been done.  It’s like a sentence for a crime but the instead of a crime, the contemnor did something 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)

The punishment in a criminal contempt action is almost always imprisonment.

“Imprisonment for criminal contempt is inflicted as a punishment for that which has been done” Peo. ex Rel. Chi. Bar Assoc. v. Barasch, 21 Ill. 2d 407, 409-10 (Ill. 1961)

“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)

Additionally, a criminal contempt proceeding means that the contemnor has the right to an court-appointed attorney to defend themselves. This is the only time when a litigant in an Illinois divorce case can get a public defender.  But, usually, a private attorney just gets appointed to mandatorily defend the contemnor.

What Is Civil Contempt Of Court In An Illinois Divorce?

Civil contempt sounds a lot less serious than criminal contempt but it usually involves the same thing: imprisonment for bad behavior. The difference between criminal and civil contempt is  why the contempt is being pursued.

“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)

While Criminal contempt is usually when a litigant has insulted the court. Civil contempt almost always involves the party violating the rights of the other party.

“[C]ivil contempts are those prosecuted to enforce the rights of private parties and to compel obedience to orders or decrees for the benefit of opposing parties” Peo. ex Rel. Chi. Bar Assoc. v. Barasch, 21 Ill. 2d 407, 409-10 (Ill. 1961)

Civil contempt is not punitive. Instead, “civil contempt is usually coercive” Peo. ex Rel. Chi. Bar Assoc. v. Barasch, 21 Ill. 2d 407, 410 (Ill. 1961)

“Civil contempt proceedings have two fundamental attributes: (1) The contemnor must be capable of taking the action sought to be coerced and (2) no further contempt sanctions are imposed upon the contemnor’s compliance with the pertinent court order.” Betts, 200 Ill. App. 3d at 44. “In other words, the contemnor must have an opportunity to purge himself of contempt by complying with the pertinent court order.” Id

The contemnor’s punishment stops immediately when the contemnor complies 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)

Once it is determined tha the contempt is civil in nature, the court does not need to observe any burdensome criminal procedures.

“In a civil contempt proceeding, the contemnor is only entitled to minimal due process, consisting of notice and an opportunity to be heard.” In re Marriage of Cummings, 222 Ill. App. 3d 943, 948 (Ill. App. Ct. 1991)

So, no lawyer or reading of charges are required as in a criminal contempt hearing.  The judge merely says, “we’re doing a hearing on your contempt.”  An extremely brief evidence of the violation of the order is presented

“The burden initially falls on the petitioner to establish, by a preponderance of the evidence, that the alleged contemnor has violated a court order.” In re Marriage of Knoll, 2016 IL App (1st) 152494, ¶ 50, 65 N.E.3d 878.

This really easy. Just allege that the order was not followed. “In a civil context, noncompliance with a court order is prima facie evidence of contempt.” In re Estate of Baldassarre, 2018 IL App (2d) 170996

This burden of proving the violation is extremely light and can consist of simple testimony such as, “He didn’t follow the order”

“A party who understands the court’s order but chooses to ignore the mandate is guilty of contempt of court.” Killion v. City of Centralia, 381 Ill. App. 3d 711, 715 (2008)

Then the contemnor must prove they did NOT violate the order or had good reason to do so. 

“Once that burden is satisfied, the burden shifts to the contemnor, who has the burden of showing 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.

So, civil contempt is actually harder to defend than criminal contempt in Illinois.

But, civil contempt is automatically undone the moment the contemnor “purges” themselves by complying with the court order.

What Is Direct Contempt In An Illinois Divorce Case?

Direct contempt is simple. Direct contempt “takes place in the very presence of the judge, making all of the elements of the offense matters within the personal knowledge of the judge and tending directly to obstruct and prevent the administration of justice” (People v. Howarth (1953), 415 Ill. 499, 508, 114 N.E.2d 785, 790.)

So, the judge saw the contempt themselves.  There’s no need for a hearing.  The judge saw and heard the contemptuous behavior. 

“Extrinsic evidence is not necessary to prove direct contempt; therefore, it may be determined and punished summarily without the formalities of pleadings and trial.” Weglarz v. Bruck, 470 N.E.2d 21 (Ill. App. Ct. 1984)

This is what we see in the movies when someone screams at a judge and the judge holds them in contempt. The judge can order direct contempt on the spot.

What Is Indirect Contempt Of Court?

Indirect contempt is the punishment for something the judge didn’t see with their own eyes.

“Indirect contempt occurs outside the presence of the court and must therefore be proved by extrinsic evidence. Where an element of the offense is not observed by the judge and must be proved by testimony from third parties, then the accused contemnor must be given notice, a fair hearing and an opportunity to be heard”Weglarz v. Bruck, 470 N.E.2d 21 (Ill. App. Ct. 1984)

Almost all Illinois divorce contempt actions stem from the failure to pay child support, alimony or provide a child for scheduled parenting time. So, indirect contempt is 99% of the contempt actions in an Illinois divorce.

Indirect contempt requires evidence. “The existence of an order of the court and proof of willful disobedience of that order are essential to any finding of indirect contempt.” In re Marriage of Spent, 342 Ill. App. 3d 643, 653, 796 N.E.2d 191, 200 (2003)

How To Combine the Many Different Kinds Of Contempt In An Illinois Divorce?

By now, you should see how there can be direct criminal contempt, indirect civil contempt, indirect criminal contempt and direct civil contempt. Any combination is possible.

99% of contempt actions in an Illinois divorce will be indirect civil contempt actions. 

So, if you are facing a petition for indirect contempt of court, you might go to jail…but not before you’ve received notice and had a hearing on a Petition For A Rule To Show Cause.

Petition For Rule To Show Cause In An Illinois Divorce Case

The goal of requesting Indirect civil contempt is to gain compliance with the order or to jail the contemnor until he or she complies.  Because civil contempt is a civil matter, it can not be called an “arrest.” Instead, it is called a “body attachment.

“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(a)

The phrase “show cause” is not a natural English expression.  “Rule to show cause” is an even more bizarre phrase. So, it needs to be unpacked.

“To show cause against a rule nisi, an order, decree, execution, etc., is to appear as directed, and present to the court such reasons and considerations as one has to offer why it should not be confirmed, take effect, be executed, or as the case may be.” Black’s Law Dictionary (10th ed. 2014)

Cook County has specific and very clear rules for petitions for a rule to show cause that also provide a good explanation of the process.

“(i) Initiation – All requests for Rule to Show Cause, Adjudication of Indirect Criminal Contempt or Indirect Civil Contempt must be in writing, must specifically identify the order or provision alleged to have been violated, and must be properly served on the responding party.

(ii) Attachments – A copy of the Judgment or Order alleged to have been violated must either be attached to any petition or motion alleging a violation, or presented to the court.” Cook County Court Rule 13.8(a)

The alleged contemnor has to be served with the petition for rule to show cause and a copy of the order they allegedly violated. 

Then we actually get to the whole point of a rule to show cause: that after a credible allegation, the order-violator has the responsibility of proving that they didn’t violate the order or had a good reason to not follow the order. This shift in which party has the burden to show proof is called the “issuance of the rule.”

“(iii) Issuance of Rule – Upon the presentation, pursuant to notice, of a verified petition, or sworn testimony in open court, seeking a finding of indirect civil contempt, which makes a prima facie showing of noncompliance, a judge may issue a Rule to Show Cause. The court may issue a rule notwithstanding the responding party’s right to file a written response.” Cook County Court Rule 13.8(a)

Then the hearing happens where the judge determines if the party to the divorce is in contempt or not. 

If the contemnor is in contempt, the judge will set a “purge.” A purge is an action (usually an amount of money) which keeps the court from issuing the 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)

Typically, the judge will set a new court date so the contemnor has the opportunity to purge their contempt and not go to jail. 

This period of time which when the purge is being sought can be called a “stay of mittimus.” A mittimus is “a precept in writing, issuing from a court or magistrate, directed to the sheriff or other ofheer, commanding him to convey to the prison the person named therein, and to the jailer, commanding him to receive and safely keep such person until he shall be delivered by due course of law.” Black’s Law Dictionary (10th ed. 2014). So, if a mittimus is stayed, the court is essentially saying “I’m keeping the sheriff from arresting you…until I lift the stay.”

All these strange latin terms aren’t even real law. “[A] stay of mittimus and its postponed issuance are “tools of judicial creation” and are not expressly authorized [by statute]” In re MH, 406 NE 2d 873 – Ill: Appellate Court, 5th Dist. 1980

Unfortunately, when you’re threatened with jail, it’s not a good time to argue with the judge about whether a stay of mittimus is an actual thing or not.

If the contemnor does purge their contempt, the judge usually sets up a new order so the contemnor can progressively comply with the original order they violated.  For example: back payments for child support or alimony. 

As you can tell by now, getting held in contempt is a massive hassle and is not worth it.  If you can’t comply with an order, ask the court to modify that order. 

It gets worse. If you are found in contempt of court in an Illinois divorce court, you must pay the opposing party’s attorney’s fees for bringing you to court.

“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, 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. If non-compliance is with respect to a discovery order, the non-compliance is presumptively without compelling cause or justification, and the presumption may only be rebutted by clear and convincing evidence. If at any time a court finds that a hearing under this Act was precipitated or conducted for any improper purpose, the court shall allocate fees and costs of all parties for the hearing to the party or counsel found to have acted improperly. Improper purposes include, but are not limited to, harassment, unnecessary delay, or other acts needlessly increasing the cost of litigation.” 750 ILCS 508(b).

What Can I Be Held In Contempt For In An Illinois Divorce?

If you violate a court order, you can be held in contempt in an Illinois divorce court.

“Terms of the agreement set forth in the judgment are enforceable by all remedies available for enforcement of a judgment, including contempt.” 750 ILCS 5/502(e)

Most court orders are agreed upon contracts like a Marital Settlement Agreement or an Allocation of Parenting Time and Parental Responsibilities. “Parties are bound to the contracts they make, and the court has a duty to construe and enforce them.” J.B. Esker & Sons, Inc. v. Cle-Pa’s Partnership, 325 Ill. App. 3d 276, 284 (2001).

An Illinois divorce court can issue “an order holding a party in contempt for violation of a parenting time order and finds that the party engaged in parenting time abuse” 750 ILCS 5/607.5(f)

“Failure of either parent to comply with an order to pay support shall be punishable as in other cases of contempt.” 750 ILCS 5/505(b)

“The court may further assess against the payor any fees and expenses incurred in the enforcement of any order or the reasonable value thereof and may impose any penalty otherwise available to it in a case of contempt.” 750 ILCS 5/710(e)

Don’t violate Illinois court orders!  If you must deviate from the strict language of an Illinois court order, then file a motion to modify that order.  Your basis to modify the court order will also be your proof that your failure to follow the order was neither willful nor contumacious.

For most people, modification will be the preferred defense to contempt in an Illinois divorce case.

Proceeding With An Illinois Divorce Case While In Contempt

A motion to modify may change the order so much that a party would no longer be in ongoing contempt. Getting that motion in front of a judge while in contempt will be difficult as a contemnor has little authority to request anything until they have purged their contempt.

“Consideration is not ordinarily given to one who shows his contempt for the courts at the same time that he asks their affirmative assistance” Santella v. Kolton, 393 Ill. App. 3d 889, 900 (Ill. App. Ct. Ist Dist. 2009). “A party who refuses to obey the mandate of the court demonstrates her contempt for the courts and is not entitled to their affirmative assistance” In re Marriage of Munger, 339 Ill. App. 3d 1104, 1109 (Ill. App. Ct. 2003). “A party who refuses to obey the mandate of the court, and who has been adjudged in contempt for such refusal, is not entitled to prosecute or defend an action when the nature of the contempt is such as to hinder and embarrass the due course of procedure in the cause” Pavilon v. Kaferly, 204 Ill. App. 3d 235, 257 (III. App. Ct. 1st Dist. 1990).

If a contemnor asks for relief while they still owe money or are in violation, politely remind the court that first thing is first: purge the contempt and then orders may be modified.

If you’ve read this far, you probably have some serious contempt issues to deal with.  Contact my Chicago, Illinois divorce firm to speak with an experienced Chicago divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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