Posted on June 8, 2023

Contempt When You Have No Money In An Illinois Divorce

During and after a divorce in Illinois, there are only certain kinds of orders: support orders, disposition of assets orders, parenting orders and discovery orders.

The first two kinds of orders, support and division of assets, are really about money. You either paid the money or you did not. Any question of enforcement of an order about a particular money issue can be cured with…other money.

The other matters that an Illinois divorce court needs to enforce, parenting and discovery, cannot be cured by money. The courts can only enforce their orders by requiring the behavior the court originally insisted on. Any other relief by an Illinois divorce court would be an error.

When you do not follow a court order in an Illinois divorce bad things are going to happen to you. Courts and their orders are powerful.

“Vital to the administration of justice is the inherent power of courts to compel compliance with their orders.” Sanders v. Shephard, 645 NE 2d 900 – Ill: Supreme Court 1994

If a court cannot impose contempt sanctions, a court cannot do anything. So, courts will be inclined to flex their contempt powers as a warning to everyone of what happens if the court’s orders are not followed.

“Courts independently must be vested with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates, and … to preserve themselves and their officers from the approach and insults of pollution. Courts thus have embraced an inherent contempt authority as a power “necessary to the exercise of all others” International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 831 (1994) (citations and quotations omitted

Any violation of an Illinois divorce court’s order would be a civil not a criminal contempt.

“[C]ivil contempt is designed to compel compliance with a court order, criminal contempt is `instituted to punish, as opposed to coerce, a contemnor for past contumacious conduct.” e In re Marriage of Knoll, 2016 IL App (1st) 152494

“[C]ivil contempt is usually coercive” Peo. ex Rel. Chi. Bar Assoc. v. Barasch, 21 Ill. 2d 407, 410 (Ill. 1961) 

“The contemnor must be capable of taking the action sought to be coerced” In re Marriage of Betts, 200 Ill. App. 3d 26, 44 (1990)

This coercion is called a “purge.” The contempt finding and its consequences are purged once the necessary delineated action is taken by the contemnor.

“A valid contempt order must contain a purge provision, which lifts the sanction when the contemnor complies with the order.”  Marriage of Knoll, 2016 IL App (1st) 152494 (citations and quotations omitted)

Failure to purge the contempt will result in the issuance of a body attachment.

A judge can order someone taken into custody while they stand before them. Usually, a contemnor avoids court (or is appearing on zoom). In such a case, the divorce judge can issue a body attachment.

“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.” 750 ILCS 5/713(a)

The body attachment order goes to the Sheriff and the Sheriff picks up the contemnor (identical to an arrest).

“The attachment order shall direct the Sheriff of any county in Illinois to take the obligor into custody” 750 ILCS 5/713(a)

“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)

At that point, the judge has a stern talk with the contemnor about what it is going to take to get out of jail.

In between the sheriff picking up the contemnor and the contemnor appearing before the judge, the contemnor can pay a cash purge to get out of jail.

What happens if the purge is not money or the contemnor simply does not have the money to pay the purge?

The contempt finding should not have even issued if the court knew the contemnor could not pay. “[A] finding of civil contempt is not proper unless the ability to purge a contempt finding is within the power of the contemnor.” Marriage of O’Malley, 2016 IL App (1st) 151118

How does a court know if a contemnor cannot pay? By using a 120 year old test.

“A party seeking to avoid a contempt finding may pay his ‘bare living expenses’ and ‘mere necessities of life’ but he must apply any remaining funds towards his support obligations.” In re Marriage of Logston, 103 Ill. 2d 266, 286 (1984), which quoted Shaffner v. Shaffner, 212 Ill. 492, 496 (1904))

You cannot plead poverty as a defense to contempt if you, yourself created that poverty. A “contemnor may not assert her inability to comply where she has voluntarily created the incapacity.” In re Marriage of Kneitz, 341 Ill. App. 3d 299, 303 (2003)

There must be “no evidence that petitioner was living an extravagant lifestyle or willfully incurring additional debt” In re McGuire, 305 Ill. App. 3d 474, 482 (Ill. App. Ct. 1999)

If the contempt requires a money-based purge and the contemnor sincerely cannot pay the money to satisfy the purge, the court cannot hold the contemnor in jail forever.

“Commitment for civil contempt, lawful when ordered, may lose its coercive effect, however. When it becomes obvious that sanctions are not going to compel compliance, they lose their remedial characteristics and take on more of the nature of punishment…[A] sanction for civil contempt must be vacated once it becomes clear that the sanction has become merely punitive. Due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed. As a requirement of due process, then, a civil contempt order will be vacated once it is evident that the sanction imposed is no longer fulfilling its original, coercive function.” Sanders v. Shephard, 645 NE 2d 900 – Ill: Supreme Court 1994 (citations and quotations omitted)

The fact that the contemnor is sitting in jail (for a long enough time) without paying to get out of jail, in effect, proves that the contemnor cannot pay the purge.

If the purge is not money based rather enforcement of parenting time or discovery, the purge can only be satisfied by allowing the ordered parenting time or producing the requested discovery. The fact that “the 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), means that the Sheriff should not be able to execute body attachments for non-monetary contempt issues in an Illinois divorce.

The court probably can order the sheriff to execute a body attachment for a non-monetary purge because a statute’s “literal meaning must fail if it yields an absurd, inconvenient, or unjust result.” IN RE COUNTY TREASURER, 134 NE 3d 958 – Ill: Appellate Court, 2nd Dist. 2019

Then again, “[a] court may not simply dispense with the plain requirements of a statute by drawing on its equitable powers.” Rockford Drop Forge Co. v. Pollution Control Board, 221 Ill. App. 3d 505, 512 (1991)

A money-based purge cannot satisfy the terms of the order which is not being complied with.  

“The purge, in other words, was not compliance with the original discovery orders but payment of a fine that, to date, he had accrued for noncompliance with those orders.” Door Properties, LLC v. Nahlawi, 2023 IL App (1st) 230012

You cannot lock someone up for contempt unless they have the metaphorical “keys to the cell” which would allow them to get out at any time they complied with the order.

“A civil contempt order that fails to provide the contemnor with the “keys to his cell” is void.” Marriage of Knoll, 2016 IL App (1st) 152494 (citations and quotations omitted)

If the civil contempt does not allow the immediate release upon satisfying an appropriate purge, the contempt looks punitive and, thus, starts looking like a criminal contempt.

‘When it becomes obvious that sanctions are not going to compel compliance, they lose their remedial characteristics and take on more of the nature of punishment.” Soobzokov v. CBS, Inc., 642 F.2d 28, 31 (2d Cir. 1981).

In a criminal contempt case, the contemnor can start invoking many constitutional protections. This becomes extraordinarily burdensome for a divorce court to process.

“The defendant in an indirect criminal contempt action has a right to be charged by written complaint, petition, or information; a right to personal service; a right to file an answer; a right to be heard; a right to present evidence; a right to cross-examine witnesses; a right to subpoena witnesses; a right to a public hearing; a right to the privilege against self-incrimination; a right to counsel and the appointment of counsel if indigent; and a right to be proved guilty beyond a reasonable doubt.” People v. Budzynski, 775 NE 2d 275 – Ill: Appellate Court, 4th Dist. 2002

Furthermore, any money penalties in a criminal case can no longer go to the other party but must be deemed fines to be paid to the state.

“In Illinois, it is well established that civil contempt is an affront to the authority of the court and not a private remedy, and any fine imposed pursuant to the contempt is payable to the public treasury and not a plaintiff” Keuper v. Beechen, Dill & Sperling Builders, Inc., 301 Ill. App. 3d 667, 669 (1998) (citations and quotations omitted)

No one wants a civil contempt case to turn into a criminal contempt case. People want what was ordered. Get it done and keep the case moving.

If you would like to keep your Illinois divorce moving, contempt or not, contact my Chicago, Illinois family law firm to speak with an experienced Illinois 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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