Some things are illegal but everyone seems to get away with them: littering, jay walking, and not paying child support or maintenance. There are laws against the failure to pay support but they are rarely enforced in criminal courts. Therefore, the support-receiver must exhaust all efforts in divorce court before invoking the State or Federal criminal penalties as described below.
The Crime Of Failing To Pay Child Support Or Maintenance In Illinois
Failure to pay child support and/or maintenance (formerly known as alimony) is a crime in Illinois
“A person commits the offense of failure to support when he or she
(1) 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; or” 750 ILCS 16/15(a)(1)
This is pretty broad! An order from a court is not even required. Just refusal to pay something or abandonment.
The state’s attorney is probably going to want an actual order so that it’s easier to prove that the crime of failure to support occurred. In that case, you need zero payments for 6 months or an arrearage of support in an amount of more than $ 5,000.
(“2) willfully fails to pay a support obligation required under a court or administrative order for support, if the obligation has remained unpaid for a period longer than 6 months, or is in arrears in an amount greater than $5,000, and the person has the ability to provide the support; or” 750 ILCS 16/15(a)(2)
“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(b)
“For a Class A misdemeanor: The sentence of imprisonment shall be a determinate sentence of less than one year” 730 ILCS 5/5-4.5-55(a)
If the obligor leaves Illinois to avoid paying support or the amount of support owed is over $ 20,000, they are subject to a felony charge.
“(3) leaves the State with the intent to evade a support obligation required under a court or administrative order for support, if the obligation, regardless of when it accrued, has remained unpaid for a period longer than 6 months, or is in arrears in an amount greater than $10,000; or
(4) willfully fails to pay a support obligation required under a court or administrative order for support, if the obligation has remained unpaid for a period longer than one year, or is in arrears in an amount greater than $20,000, and the person has the ability to provide the support.” 750 ILCS 16/15(a)(3),(4)
“A person convicted of an offense under subdivision (a)(3) or (a)(4) or a second or subsequent offense under subdivision (a)(1) or (a)(2) is guilty of a Class 4 felony.” 750 ILCS 16/15(b)
“For a Class 4 felony:…The sentence of imprisonment shall be a determinate sentence of not less than one year and not more than 3 years.” 730 § 5/5-4.5-45 5/5-4.5-45
In addition to possible jail time, there is restitution and fines.
”[T]he court shall order restitution of all unpaid support payments and may impose the following fines, alone, or in addition to a sentence of imprisonment under the following circumstances:
(1) from $1,000 to $5,000 if the support obligation has remained unpaid for a period longer than 2 years, or is in arrears in an amount greater than $1,000 and not exceeding $10,000;
(2) from $5,000 to $10,000 if the support obligation has remained unpaid for a period longer than 5 years, or is in arrears in an amount greater than $10,000 and not exceeding $20,000; or
(3) from $10,000 to $25,000 if the support obligation has remained unpaid for a period longer than 8 years, or is in arrears in an amount greater than $20,000.” 750 ILCS 16/15(d)
This is powerful stuff! Why aren’t Illinois’ jails full of deadbeats who are behind on their child support and maintenance?
The Defense To The Crime Of Failure To Support In Illinois
In my almost 20 years of experience as a divorce lawyer in Illinois, I’ve realized that most people who fail to pay child support and maintenance aren’t gleefully counting the money they should have paid their ex. Instead, they are broke losers!
Inability to pay the ordered support is a sufficient defense to the crime of failure to support in Illinois.
750 ILCS 16/15(a)(1),(2) and (3) all include the caveat “and the person has the ability to provide the support”
It’s presumed that the support ordered can be afforded by the obligor. “The existence of a court or administrative order of support that was not based on a default judgment and was in effect for the time period charged in the indictment or information creates a rebuttable presumption that the obligor has the ability to pay the support obligation for that time period.” 750 ILCS 16/15(a-5)
Again, these people who cannot pay the ordered support are usually just losers. Losers can be very convincing regarding their inability to pay support (or do anything properly). Their whole life is, likely, very reflective of this fact.
Prosecutorial Discretion For The Crime of Failure To Support
Crimes such as failure to pay support should be brought to your local county’s State’s Attorney. They will review your allegations and decide whether to criminally prosecute the support-payor.
Prosecutors are not bound to prosecute every alleged crime that is presented to them.
“Even after the filing with the court of a verified complaint, the State’s Attorney still retains discretion regarding whether to file an information or indictment to commence the prosecution and retains the discretion to thereafter manage the criminal prosecution.” People v. Determan, 925 NE 2d 227 – Ill: Appellate Court, 5th Dist. 2009
Furthermore, if the prosecutor does not find “probable cause” that the accused committed Failure To Support, the prosecutor must NOT proceed with the case.
“The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause” Ill. R. Prof’l Conduct (2010) R. 3.8(a)
For a prosecutor “probable cause is defined as a state of facts that would lead a person of ordinary care and prudence to believe or to entertain an honest and sound suspicion that the accused committed the offense charged.” Gauger v. Hendle, 954 NE 2d 307 – Ill: Appellate Court, 2nd Dist. 2011
Therefore, it is incumbent on the support-receiver to prove both the failure to pay support and the ability to pay support in order for the prosecutor to decide to invest time into your child support case in lieu of the numerous violent crimes and property crimes that are already clogging the system.
Getting sufficient evidence of the failure to pay and the ability to pay can be done within the original divorce case, which has its own enforcement mechanisms.
Enforcing Support In The Civil Divorce Case
Existing support orders can be enforced via a Petition for Indirect Civil Contempt.
“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)
You are going to have to prove the failure to pay just like you would in a criminal trial. “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)
What you don’t have to prove is that the support payor had the ability to pay. Instead, the support-payor must prove that they did NOT have the ability to pay.
“Once the petitioner establishes by a preponderance of evidence that a violation occurred, the alleged contemnor 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 McCormick, 2013 IL App (2d) 120100, ¶ 17
Once held in contempt, an Illinois divorce court can issue a body attachment which is, effectively a civil order for arrest. “A body attachment order has long been held an appropriate vehicle to effectuate an order of commitment after a person has been adjudged in civil contempt.” In re Marriage of Harnack, 2022 IL App (1st) 210143
Once arrested, the support-payor will be ordered to pay what they can before they will be released. “The conduct sought to be coerced by civil contempt proceedings…[t]he most familiar example is jailing a former spouse who, although able to do so, fails to make timely child support or maintenance payments.” In re Marriage of Betts, 200 Ill. App. 3d 26, 44 (Ill. App. Ct. 1990) “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)
So, the process to prove to prosecutor to take your case is the same process that issues an arrest warrant for them, jails them and will not release them until they’ve paid….which renders charging the support-payor moot.
A body attachment can only be exercised within the State of Illinois. If a support-payor moves outside of Illinois, they are effectively immune from coercion unless a local attorney registers the Illinois support order as a foreign judgment and then uses the local contempt laws to enforce that judgment. By the time the foreign judgment is enrolled and the contempt motion is filed, the support-payor could be moving to a new state where they are, again, immune from civil prosecution. In such a case, there is one final alternative: federal prosecution.
Federal Failure To Pay Legal Child Support Obligations
If a parent is hoping between states avoiding contempt petitions, the long arm of the federal government can prosecute that parent.
“Any person who—
- willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000;”
“in the case of a first offense under subsection (a)(1), a fine under this title, imprisonment for not more than 6 months, or both” 18 U.S.C. § 228(c)(1)
If it can be proven that the support-payor moved in order to evade paying support or the money owed is greater than $ 10,000, the penalty is much more severe.
“(2) travels in interstate or foreign commerce with the intent to evade a support obligation, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000; or
(3) willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000” 18 U.S.C. § 228(a)(2),(3)
“in the case of an offense under paragraph (2) or (3) of subsection (a), or a second or subsequent offense under subsection (a)(1), a fine under this title, imprisonment for not more than 2 years, or both. 18 U.S.C. § 228(c)(2)”
Federal prosecution is only an option if there is a child between the parties.
“[T]he term “support obligation” means any amount determined under a court order or an order of an administrative process pursuant to the law of a State or of an Indian tribe to be due from a person for the support and maintenance of a child or of a child and the parent with whom the child is living.” 18 U.S.C. § 228(f)(3)”
So, a pure maintenance obligation will not trigger a violation of federal law if not paid.
Sadly, even the federal government is not eager to prosecute child support cases as the Department of Justice’s website instructs: “Child support enforcement matters are generally handled by local and state authorities, and not by the federal government. To report a child support enforcement issue, contact your local or state law enforcement agency or contact your local “Title IV-D” agency, which is required by federal law to provide child support enforcement services to anyone who requests such services. To locate your local “Title IV-D” agency visit the U.S Department of Health and Human Services, Office of Child Support Enforcement’s website at http://www.acf.hhs.gov/css/parents.”
If seems that criminal prosecution for failure to pay support is a last resort option and it is likely that the party owed support will have to prove to the state or federal prosecutor that they have exhausted all of the available options in civil court before the government will invoke its powers of prosecution.
Having a detailed record from your civil case will allow the criminal case to take judicial notice of the facts you established in your civil case.
“A trial court should take judicial notice of closely related proceedings. (See Goad v. Evans (1989), 191 Ill.App.3d 283, 138 Ill.Dec. 523, 547 N.E.2d 690 (which held that the circuit court in a wrongful death action should have taken judicial notice of a letter of administration appointing the plaintiff administrator of her son’s estate).) Judicial notice may be taken of factual evidence where the facts are capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy. (People v. Davis (1976), 65 Ill.2d 157, 2 Ill.Dec. 572, 357 N.E.2d 792.) Judicial notice of other proceedings may be proper where the same parties are involved and the allegations from those proceedings have been proved.” In re Marriage of DeBow, 602 NE 2d 984 – Ill: Appellate Court, 5th Dist. 1992
An easier-to-prove case should hopefully make a prosector more willing to take that case on.
If you’d like to prepare your civil support case for criminal prosecution, contact my Chicago, IL family law firm to speak with an experienced Illinois divorce attorney.
Russell D. Knight is an attorney with over 19 years experience enforcing child support and maintenance cases before tendering those orders over to a state or federal prosecutor for criminal prosecution.
