Blackmail in an Illinois Divorce

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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Extortion And Divorce In Illinois

Blackmail in an Illinois Divorce

Divorce is the unwinding your life from someone who knows you really, really well. Your spouse or ex-spouse may threaten you in order to get your cooperation during or after your Illinois divorce. Sometimes, these threats are illegal and punishable by law. Sometimes these threats are empty bickering.

What constitutes extortion in an Illinois divorce?

“In Illinois, “extortion” and “blackmail” are synonymous terms.” Jordan v. Knafel, 823 NE 2d 1113 – Ill: Appellate Court, 1st Dist., 4th Div. 2005 (yes, it’s THAT Jordan)

Blackmail is “[a] threatening demand made without justification.” Black’s Law Dictionary 163 (7th ed.1999).

Is Extortion A Crime In Illinois?

When blackmail or extortion are a crime in Illinois, they are called Intimidation

“A person commits intimidation when, with intent to cause another to perform or to omit the performance of any act, he or she communicates to another, directly or indirectly by any means , a threat to perform without lawful authority any of the following acts:(1) Inflict physical harm on the person threatened or any other person or on property; or (2) Subject any person to physical confinement or restraint; or (3) Commit a felony or Class A misdemeanor ; or (4) Accuse any person of an offense; or (5) Expose any person to hatred, contempt or ridicule; or (6) Take action as a public official against anyone or anything, or withhold official action, or cause such action or withholding; or(7) Bring about or continue a strike, boycott or other collective action.” 720 ILCS 5/12-6(a)

If your ex-spouse is doing any of these things, report them to the police. Intimidation is a serious crime.

“Intimidation is a Class 3 felony for which an offender may be sentenced to a term of imprisonment of not less than 2 years and not more than 10 years.” 720 ILCS 5/12-6(a)

Threats are all in context. The threatener usually has an excuse for why their words were not actually a threat.

“It is not the abstract meaning of words that constitute an expression [of] a threat, but their reasonable tendency under the circumstances to place another in fear that the threat-maker will perform the threatened act. An innocent expression may be threatening because of the ominous circumstances in which it is made. Similarly, a statement that is literally a declaration of intent to do harm to another is not a threat if the context negatives any reasonable apprehension that the speaker intends what he says he intends.'” Landry v. Daley, 280 F.Supp. 938, 962 (N.D.Ill.1968)

This necessity of a crystal-clear threat means that most accusations of intimidation will fail. More likely than not, your spouse or ex-spouse’s obnoxious and/or obstinate behavior does not qualify as criminal intimidation. Instead, they are just invoking their rights as a divorce litigant (however forcefully)

When “one intends to use the courts to insist upon what he believes to be his legal rights’ [is] not actionable” as intimidation, extortion or blackmail. Enslen v. Village of Lombard, 128 Ill.App.3d 531, 533, 83 Ill.Dec. 768, 470 N.E.2d 1188, 1190-91 (1984).

While not a crime, it’s possible that legal harassment in an Illinois divorce or the threat thereof is the tortious act “abuse of process”

Abuse Of Process In An Illinois Divorce

Misusing the legal system to harass your spouse or ex-spouse may be a civil cause of action.

“Abuse of process is the misuse of legal process to accomplish some purpose outside the scope of the process itself.  The two distinct elements of an abuse of process claim are: (1) the existence of an ulterior purpose or motive and (2) some act in the use of process that is not proper in the regular course of proceedings. Because the tort of abuse of process is not favored under Illinois law, the elements must be strictly construed… In order to satisfy the first element, a plaintiff must plead facts that show that the defendant instituted proceedings against him for an improper purpose, such as extortion, intimidation, or embarrassment…In order to satisfy the second element, the plaintiff must plead facts that show a misapplication of process, or, in other words, the plaintiff must show that the process was used to accomplish some result that is beyond the purview of the process.” NEUROSURGERY AND SPINE SURGERY v. Goldman, 790 NE 2d 925 – Ill: Appellate Court, 2nd Dist. 2003

Filing a motion, issuing discovery or doing anything else authorized by law in an Illinois divorce is not abuse of process…even if they have bad intentions.

“The mere institution of a proceeding, even with a malicious motive, does not constitute an abuse of process.” Ammons v. Jet Credit Sales, Inc. (1962), 34 Ill. App.2d 456, 462, 181 N.E.2d 601.

Threats in a divorce are usually to expose some truth about the threatened party. In divorce court, that’s just called “evidence.”

An “alleged threat, if any, [is usuallu] more of a reproof of plaintiff’s conduct than an earnest threat of an unlawful abuse of process. [If i]t lacked such compulsion as to render the defendant’s execution of the deeds an involuntary act, and did not constitute duress.” Pollard v. Pollard, 147 NE 2d 66 – Ill: Supreme Court 1957

If extortion, blackmail or intimidation are neither a crime nor a civil tort in Illinois, can they at least be duress if your spouse’s behavior forces you to enter into an agreement you otherwise would not have (also known as duress)

Can Extortion, Blackmail or Intimidation Undo An Illinois Divorce Agreement?

Agreements can be voided in Illinois if they were entered into due to duress.

“Duress has been defined as a condition where one is induced by a wrongful act or threat of another to make a contract under circumstances which deprive him of the exercise of his free will, and it may be conceded that a contract executed under duress is voidable.” Kaplan v. Kaplan, 182 NE 2d 706 – Ill: Supreme Court 1962

“[Vacating an agreement] may be available to set aside a settlement agreement that is unconscionable or was entered into because of duress.” In re Marriage of Johnson, 790 NE 2d 91 – Ill: Appellate Court, 2nd Dist. 2003

Much like criminal intimidation and abuse of process, duress cannot occur based on the other party simply invoking their legal rights.

“[I]t is well established that it is not duress to institute or threaten to institute civil suits, or for a person to declare that he intends to use the courts to insist upon what he believes to be his legal rights, at least where the threatened action is made in the honest belief that a good cause of action exists, and does not involve some actual or threatened abuse of process.” Kaplan v. Kaplan, 182 NE 2d 706 – Ill: Supreme Court 1962

Yes. Your spouse or ex-spouse is annoying, vexing and frustrating…but that is not sufficient to establish duress in Illinois.

“[D]uress is not shown by subjecting one to annoyance or vexation…and it is our belief that a threat of personal embarrassment does not rise above annoyance and vexation.” Kaplan v. Kaplan, 182 NE 2d 706 – Ill: Supreme Court 1962

How To Really Handle Extortion, Blackmail and Intimidation In Illinois

If your spouse or ex-spouse is extorting or blackmailing you, my advice is “shrug it off and ask for sanctions.”

Almost nothing in an Illinois divorce is affected by your behavior or the exposure thereof.

Illinois divorce courts “divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 503(d) (emphasis mine)

“[T]he court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse.” 750 ILCS 5/504(a)(emphasis mine)

Illinois child support is a purely algebraic function “based upon the parents’ combined net income estimated to have been allocated for the support of the child if the parents and child were living in an intact household.” 750 ILCS 5/501(a)(1)(D)

Parenting time is, likewise, not affected by embarrassing if private behavior. “In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)

“Visitation should not be used to penalize or reward parents for their conduct.” In re Marriage of Mitchell, 745 NE 2d 167 – Ill: Appellate Court, 2nd Dist. 2001

What is the worst a blackmailer can really do? We are only human. Divorce judges have heard it all…and divorce judges are rarely, if ever, phased.

What divorce judges do not like is blackmail and extortion…if the allegations are false.

If the matter that is the subject of the extortion or blackmail was actually serious, that issue should not have been mischaracterized or omitted from the pleadings.

“Every pleading, motion and other document of a party represented by an attorney shall be signed by at least one attorney of record in his individual name…A party who is not represented by an attorney shall sign his pleading, motion, or other document and state his address. …The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Ill. Sup. Ct. R. 137 (emphasis mine)

The pleadings need to be honest and complete. Extortion or blackmail implies that the pleadings are neither honest nor complete…and that can subject the extorter to sanctions.

“If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee.” Ill. Sup. Ct. R. 137

Sanctions are usually an order to cease the bad behavior and pay the attorney’s fees that were necessary to bring the sanctionable behavior to the court’s attention.

“The purpose of Rule 137 is to prevent abuse of the judicial process by penalizing claimants who bring vexatious and harassing actions based upon unsupported allegations of fact or law.” Williams Montgomery & John Ltd. v. Broaddus, 91 N.E.3d 915, 925 (Ill. App. Ct. 2017)

The thesis of the extorter is that “bad behavior should have consequences.” Well, turn the tables on the extorter and reveal to the court that their bad behavior…which should also be accounted for.

If you’re being extorted (in one way or another) and you would like to stop the extortion and hold your ex accountable for their actions, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.