The parties to a case are then governed by the words of the written order. If either party violates the order, the other party has the right to return to the divorce court to ask that the order be enforced and that the order violator be punished.
“It is an elementary principle of law that a court is vested with the inherent power to enforce its orders. Where a domestic relations order has been entered, the trial court retains jurisdiction to enforce its order.” Smithberg v. the Illinois Municipal Retirement Fund, 192 Ill. 2d 291, 297-98 (Ill. 2000)(Citations Omitted)
There are two distinct and different ways to enforce an order in an Illinois divorce court: 1) via a motion to enforce and 2) via a petition for rule to show cause (and adjudication on indirect civil contempt).
Which is the appropriate vehicle for enforcing your divorce order and ensuring future compliance? It depends on the nature of the violation and the relationship you have with your ex-spouse.
Motion To Enforce In An Illinois Divorce
A motion to enforce is the simplest way to request compliance with an Illinois divorce court order.
“A judgment of dissolution or of legal separation or of declaration of invalidity of marriage may be enforced…by order of court pursuant to petition…Any judgment entered within this State may be enforced…in the judicial circuit wherein such judgment was entered or last modified by the filing of a petition with notice mailed to the respondent at his last known address, or by the issuance of summons to the respondent.” 750 ILCS 5/511
A motion to enforce simply asks for a second order that the party comply with the first order. There is no punishment. No attorney’s fees. No jail time.
This begs the questions, if the order violator is not complying with the first order why would they comply with the second order?
There are many reasons to prefer this seemingly toothless enforcement method in a post-judgment divorce.
- A motion to enforce does not have to be served on anyone. Notice can be mailed.
- A motion to enforce helps create a narrative for the judge overseeing the case. Coming politely asking for compliance often frames who is the reasonable. The alternative can be histrionic in comparison and, thus, make the enforcer seem unreasonable.
- Accusations on paper create enormous enmity between people. A motion to enforce does not require specific language detailing the order and its subsequent violation. “He/She is not following the order” is sufficient for the motion with later elaboration in court. Compliance without confrontation and conflagration is a reasonable goal.
- The violator is likely a co-parent. Demanding strict punishment of a co-parent is hardly ever the goal. Rather, compliance with the order is the goal.
A motion to enforce is actually a backdoor motion to modify. In fact, the same statute, 750 ILCS 5/511, is used to modify an order as is used to enforce an order.
A motion to enforce tells a court, “Clearly this isn’t working out. Can you give us an order that will?”
Any motion to modify will require an Illinois divorce court to find a “substantial change in circumstances.”
“An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5)
“An order for child support may be modified as follows… upon a showing of a substantial change in circumstance” 750 ILCS 5/510(a)
“Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child” 750 ILCS 5/610.5(a)
“[T]he court shall modify a parenting plan or allocation judgment when necessary to serve the child’s best interests if the court finds…a substantial change has occurred in the circumstances of the child or of either parent and that a modification is necessary to serve the child’s best interests.” 750 ILCS 5/610.5(c)
While “[t]here is no precise formula for a substantial change in circumstances,” In re Marriage of Solecki, 2020 IL App (2d) 190381, you can argue that if failure to comply with the previous order is clearly a substantial change in circumstances as to the last order.
If you want to enforce the current order and possibly modify the order at the same time, a motion to enforce will be a more compelling vehicle to achieve that goal.
Petition For Rule To Show Cause (And Adjudication On Civil Contempt)
In lieu of asking a court to simply enforce the order, you can request that the court hold the order violator in contempt of court because of their violation of the order.
Contempt is “[t]he act of demeaning the court, preventing justice administration, or disobeying a sentence of the court.” Black’s Law Dictionary (10th ed. 2014)
“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 violation of a divorce court order is 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)
“[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)
Indirect civil contempt is when something happened outside the court between the two parties to the case that is a violation of a civil (divorce) court order.
A Petition For Rule To Show Cause (And Adjudication On Civil Contempt) is a much more elaborate process than a motion to enforce.
Local rules usually govern the specific requirements of a Petition For Rule To Show Cause (And Adjudication On Civil Contempt). In Cook County, Illinois, the rules are as follows:
“(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 violation’s description must be absolutely specific or the Petition For Rule will be denied on its face.
“(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)
The violator must be properly noticed (this usually means served) for the court to hear the initial presentment of a Petition For Rule To Show Cause (And Adjudication Of Civil Contempt).
Upon that initial presentment, the party alleging the order violation must prove the 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.
At this point, the rule to show cause shall be deemed to have “issued” and the burden of proof then shifts to the alleged rule violator.
“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.
This might not even happen on the same day. There may be one day in court to hear the allegation and then a second day in court to hear the excuse.
Finally, when the order violator is found in contempt, the order violator is given a chance to make things right via 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 omitted)
The purge is the enforcement! It just took extra steps.
But, the purge may not be complete enforcement. The court may set the purge at some half measure based on the perceived ability of the order violator to perform the purge. For example, if someone owes $ 50,000 in child support, the purge may be as low as a $5,000 payment.
If there is not successful purge of contempt by the order violator, there are a series of consequences that a motion to enforce cannot supply.
An Illinois divorce court can order the order violating party to be imprisoned (in civil cases, this is called “a body attachment“)…but only after personal service and an opportunity to appear in court to explain themselves.
“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
The period of imprisonment only lasts as long as the person has not purged the contempt.
“[Contemnors] 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)
Most purges are monetary and the contemnors always seem to find the money almost immediately. Non-monetary purges are usually impermissible unless they can be purged from a jail cell (ceasing criticism of a parent vs. signing a QDRO).
Finally, a finding of contempt entitles the other party to be reimbursed for their attorneys’ fees related to enforcement.
“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.” 750 ILCS 508(b). (emphasis mine)
As most contempt purges in divorce court relate to an ex-spouse’s failure to pay, asking them to also pay attorneys’ fees often amounts to wishful thinking.
After going through the Kafka-esque nightmare of a Petition For Rule To Show Cause and it’s various consequences, the order violator will think twice about violating the order again. Or, the order violator may realize, “I can’t follow this order” and request that the order be modified based on their inability to effectively comply with the order.
If you are trying to enforce your divorce decree and your divorce lawyer does not offer and describe the two options for enforcement, 1) motion to enforce and 2) petition for rule to show cause, then you are not receiving good counsel.
Divorce attorneys, in my experience, have a horrible habit of “shooting a fly with an elephant gun” and using petitions for rule to show cause exclusively when a simple motion to enforce would achieve the same fundamental goal. This over-litigation will inevitably result in more opposing litigation which is likely the opposite of the client’s goal.