After an Illinois divorce is settled or a trial order is issued, the divorce is not over. Both parties must still comply with the terms of the Judgment for Dissolution of Marriage and the incorporated Marital Settlement Agreement and Allocation of Parenting Time and Parental Responsibilities. Illinois law provides multiple methods for enforcing those terms.
All of these contracted agreements become incorporated into the judgment once the Judgment for Dissolution of Marriage is entered. At that time, the agreements are enforceable as judgments.
“Under section 502(e) of the Illinois Marriage and Dissolution of Marriage Act (Act), settlement agreements are enforceable as terms of a judgment and by incorporation into a judgment they become part of the trial court’s order. By such incorporation, the agreement’s subservient nature as a contract gives way to the dominant character of the adjudication. Thus, the terms of the marital settlement agreement are enforceable as terms of the judgment.” In re Marriage of Sloane, 255 Ill. App. 3d 653, 656 (Ill. App. Ct. 1993)
“Terms of the agreement set forth in the judgment are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.” 750 ILCS 5/504(e)
Orders get enforced in the same court the order was issued.
“Any judgment entered within this State may be enforced…in the judicial circuit wherein such judgment was entered” 750 ILCS 5/511(a)
“If neither party continues to reside in the county wherein such judgment was entered or last modified, the court on the motion of either party or on its own motion may transfer a post-judgment proceeding…to another county or judicial circuit, as appropriate, where either party resides.” 750 ILCS 5/511(a)
But, filing a motion for enforcement is kind of silly because they are already not following the order. What are you going to do? Get another order which they will, in turn, also not follow? You need something extra. You need the power of contempt.
Enforcing a Judgment Via Contempt
To violate a court order is to insult the decency and power of the court which issued that order. Therefore, that court may hold the violator in contempt for said violation.
Contempt can either be criminal or civil. Violation of a judgment for dissolution of marriage and its incorporated orders is invariably an issue of civil contempt.
“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)
“[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 further distinguished into direct and indirect. Direct contempt is something witnessed directly by the court whereupon the court can make a ruling of contempt immediately. Indirect civil contempt was not seen by the court directly, so the court must examine evidence to determine if the violation actually happened.
Violation of a court order will almost always be outside of the courtroom so almost all contempt issues are indirect in nature and thus require a full hearing. A hearing on indirect civil contempt contains several steps. Those steps are particular to the County which has jurisdiction over the case.
In Cook County, Illinois, the pleading that asks that the violator be held in contempt is called a “Petition For Rule To Show Cause”
“(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)
(vii) Return to Court – 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 13.8(a)
The order violator is given notice and a court date.
“Service of Rules – Unless otherwise directed by the court, service of any Rule to Show Cause shall be as required by Cook County Circuit Court Rule 6.1(a) and Illinois Supreme Court Rule 105(b).” Cook County Rule 13.8(a)(v)
“In [an indirect] 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)
The aggrieved party must present minimal evidence that the court order was violated.
“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.
After this brief showing of the violation’s existence, the violator is given the opportunity to prove that while they violated the order, they did not do so either willfully or contumaciously.
“[T]he 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.
This combination of violation plus willful or contumacious behavior results in a finding of contempt.
“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)
“ Form of Order – When a judge issues a Rule to Show Cause, the form Order on Rule to Show Cause provided by the court shall be used.
(vi) Findings of Contempt – 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 Rule 13.8(a)(v)
The point of holding someone in contempt is to make them comply with the order. The court has various penalties available to enforce compliance, including jail. But those penalties must be withdrawn immediately upon compliance of the violator. “They are imprisoned only until they comply with the orders of the court, and this they 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)
“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)
This opportunity to remove the contempt and thus free the violator from the contempt penalty is called a “purge”
“[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 Ommited)
People always seem to find the money when the sheriff takes them off the floor of the court and into a holding cell. A few calls (usually to their mother) and their obligations are fulfilled…for now.
Some judges don’t care to use their contempt powers if the obligations required in the order are not ongoing. For example, if a lump sum is owed from one party to the other, a judge may insist that the Marital Settlement Agreement is a contract like any other and that contract must be enforced under the contract’s terms.
Enforcing A Judgment Via Contract Terms
An order that includes any kind of lump sum money amount, ex: “John shall pay Jane $ 10,000 in settlement of their equitable division of marital assets”, can be enforced like any other debt in Illinois’ civil courts.
This enforcement differs drastically from a contempt action in domestic relations courts. In Illinois counties with large populations, contract enforcement is done in a civil court outside of the original domestic relations court where the contract was formed and ratified.
Civil courts have different discovery tools available to them such as the Citation To Discover Assets.
“A judgment creditor, or his or her successor in interest when that interest is made to appear of record, is entitled to prosecute citations to discover assets for the purposes of examining the judgment debtor or any other person to discover assets or income of the debtor” 735 ILCS 5/2-1402(a)
The notice on the Citation To Discovery Assets explains it’s purpose.
“The court has issued a citation against the person named above. The citation directs that person to appear in court to be examined for the purpose of allowing the judgment creditor to discover income and assets belonging to the judgment debtor or in which the judgment debtor has an interest. The citation was issued on the basis of a judgment against the judgment debtor in favor of the judgment creditor in the amount stated above. On or after the court date stated above, the court may compel the application of any discovered income or assets toward payment on the judgment.” 735 ILCS 5/2-1402(b)
Once served, the debtor’s assets can be frozen until further order. “Citation to discover assets is clearly designed to ascertain and freeze the judgment debtor’s non-exempt assets, up to an amount double the balance due on the judgment.” City of Chicago v. Air Auto Leasing Co., 697 NE 2d 788 – Ill: Appellate Court, 1st Dist., 1st Div. 1998
When the assets of the party owing money are discovered, those assets may be ordered transferred to the party who is owed the money.
“[T]he court may, by appropriate order or judgment:….[c]ompel the judgment debtor to deliver up, to be applied in satisfaction of the judgment, in whole or in part, money, choses in action, property or effects in his or her possession or control, so discovered, capable of delivery and to which his or her title or right of possession is not substantially disputed.” 735 ILCS 5/2-1402(c)(1)
Compliance with the discovery of the debtor’s assets and transfer of the debtor’s assets is mandatory. “Any person who fails to obey a citation, subpoena, or order or other direction of the court issued pursuant to any provision of this rule may be punished for contempt.” Rule 277 – Supplementary Proceedings, Ill. Sup. Ct. R. 277
If the debtor party doesn’t have all of the money at once, the court can order payments. An Illinois court can “[c]ompel the judgment debtor to pay to the judgment creditor or apply on the judgment, in installments, a portion of his or her income, however or whenever earned or acquired, as the court may deem proper” 735 ILCS 5/2-1402(c)(2)
Not surprisingly, people that don’t pay their debts the first time cannot be relied upon to regularly make instalment payments. Therefore, the Illinois court is empowered to garnish their wages.
An Illinois court can“[c]ompel any person cited, other than the judgment debtor, to deliver up any assets so discovered, to be applied in satisfaction of the judgment, in whole or in part” 735 ILCS 5/2-1402(c)(3)
There are limits on an Illinois court’s power to seize or garnish a debtor’s assets and income.
The first $ 4000 of assets a person has is untouchable by a debtor. The first $ 15,000 of equity in a house and the first $ 1,500 of equity in a motor vehicle is also exempt from attachment in an Illinois collections case.
A house is usually a person’s largest asset but you can’t just force the sale of a house. First you have to put a lien on the house. “[A] judgment is a lien on the real estate of the person against whom it is entered in any county in this State” 735 ILCS 5/12-101
Establishing a lien against the real estate requires that something be filed with the recorder of deeds. A lien arises “only from the time a transcript, certified copy or memorandum of the judgment is filed in the office of the recorder in the county in which the real estate is located.” 735 ILCS 5/12-101
A lien due to child support owed requires a lot of due diligence. “A judgment resulting from the entry of an order requiring child support payments shall be a lien upon the real estate of the person obligated to make the child support payments, but shall not be enforceable in any county of this State until a transcript, certified copy, or memorandum of the lien is filed in the office of the recorder in the county in which the real estate is located.” 735 ILCS 5/12-101
When the house eventually sells the judgment amount as listed by the lien will be paid from the proceeds of the sale. “Upon confirmation of the sale, the judgment stands satisfied to the extent of the sale price less expenses and costs. If the order confirming the sale includes a deficiency judgment, the judgment shall become a lien in the manner of any other judgment for the payment of money.” 735 ILCS 5/15-1508
Garnishments of income can only be so large. “Under Illinois law, the amount of wages that may be applied toward a judgment is limited to the lesser of (i) 15% of gross weekly wages or (ii) the amount by which disposable earnings for a week exceed the total of 45 times the federal minimum hourly wage or, under a wage deduction summons served on or after January 1, 2006, the Illinois minimum hourly wage, whichever is greater…Under federal law, the amount of wages that may be applied toward a judgment is limited to the lesser of (i) 25% of disposable earnings for a week or (ii) the amount by which disposable earnings for a week exceed 30 times the federal minimum hourly wage.” 735 ILCS 5/2-1402(b)
Furthermore, various streams of income are completely untouchable in a collections action. The following sources of income cannot be attached in an Illinois collections action: “Social Security and SSI benefits; public assistance benefits; unemployment compensation benefits; worker’s compensation benefits; veteran’s benefits; circuit breaker property tax relief benefits” 735 ILCS 5/2-1402(b)(1)
Additionally, “[p]ension and retirement benefits and refunds may be claimed as exempt under Illinois law” 735 ILCS 5/2-1402(b)(5)
If the debtor’s assets and income are all exempt. The collections case will be dismissed.
“If upon examination the court determines that the judgment debtor does not possess any non-exempt income or assets, then the citation shall be dismissed.” 735 ILCS 5/2-1402(d)(5)
The investigation of a debtor’s assets may be fast and loose but “[t]he court at any time may terminate the deposition or order that proceedings be conducted before the court or officer designated by the court, and otherwise control and direct the proceeding to the end that the rights and interests of all parties and persons involved may be protected and harassment avoided.” Rule 277 – Supplementary Proceedings, Ill. Sup. Ct. R. 277
Unlike using contempt in the original domestic relations court, enforcing a contract on its own terms does not allow for possible jail until the terms of the contract are met.
“Incarceration of judgment debtor. No order shall be entered for the incarceration of a judgment debtor as a means of satisfying a money judgment” 735 ILCS 5/12-107
Judgments can only be enforced for so long (7 years) and once 7 years have passed, the judgment needs to be revived or the debt becomes unenforceable.
“[N]o judgment shall be enforced after the expiration of 7 years from the time the same is rendered, except upon the revival of the same” 735 ILCS 5/12-108
Even if you do revive a judgment with due diligence, you only have a 20 year window. “A petition to revive a judgment…may be filed no later than 20 years next after the date of entry of such judgment.” 735 ILCS 5/13-218
If you can’t tell by now, Illinois divorce lawyers hate using civil courts to collect on judgments. While it is easier to determine a debtor’s assets in civil court, it is harder to collect those assets compared to a contempt action.
Collecting On An Illinois Divorce Judgment…With Interest
Judgments collect interest under Illinois law.
“[J]udgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied” 735 ILCS 5/2-1303
9% is A LOT of interest and it compounds quickly. With a 9% interest rate, the debt will double ever 8 years.
Child support judgments compound at an even faster rate. “Every judgment arising by operation of law from a child support order shall bear interest [compounded monthly]” 735 ILCS 5/12-109(b)
Whether you’re in domestic relations court or a civil court, you can request that interest increase your judgement amount while you’re in the process of collecting said amount.
If you’re trying to enforce your divorce judgment in Illinois, contact our Chicago, Illinois family law firm to learn more about the many ways to recover what you are owed by your ex-spouse.