Whether you had an Illinois divorce with a child or you had an Illinois parentage case, if your ex owes you child support it is presumed that an order was entered in an Illinois court requiring him or her to pay child support. If the other parent has not paid child support pursuant to that order, the other parent is violating that child support order.
Sometimes the facts are now so different that the order is impossible to follow any longer. With child support, these situations are exceedingly rare.
If you are behind on your child support, you should should be familiar the many consequences you might face and the tactics the other parent can engage in to collect what you owe.
Petition For Rule To Show Cause
The most common way to collect child support is to file a Petition for Rule To Show Cause (And Adjudication on Indirect Civil Contempt) asking the court to enforce the judgment.
750 ILCS 5/511 states that “Any judgment entered within this State may be enforced or modified 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.”
In addition to merely enforcing the order (ex: “you have to pay now”) the court additionally has the power to hold the person violating the order in indirect civil contempt.
Civil contempt proceedings have two fundamental attributes: (1) The contemnor must be capable of taking the action sought to be coerced, and (2) no further contempt sanctions are imposed upon the contemnor’s compliance with the pertinent court order. (People ex rel. Melendez v. Melendez (1971), 47 Ill.2d 383, 387, 266 N.E.2d 327, 329; Betts I, 155 Ill. App.3d at 103-04, 507 N.E.2d at 921.) In other words, the contemnor must have an opportunity to purge himself of contempt by complying with the pertinent court order. If the contempt sanction is incarceration, the respondent’s circumstances should be such that he may correctly be viewed as possessing the “`keys to his cell.'” In re Marriage of Logston (1984), 103 Ill.2d 266, 289, 469 N.E.2d 167, 177.
In sum, the person who owes child support must pay or face the possibility of jail until they’ve paid.
“The power to enforce an order to pay money through contempt is limited to cases of willful refusal to obey the court’s order.” In re Marriage of Logston, 103 Ill. 2d 266, 285 (1984). “The noncompliance with an order to pay maintenance constitutes prima facie evidence of contempt.” Id. Once the party bringing the contempt petition establishes a prima facie case, the burden shifts to the alleged contemnor to prove that the failure to pay was not willful or contumacious and that there exists a valid excuse for his failure to pay. In re Marriage of Sharp, 369 Ill. App. 3d 271, 279 (2006)
So, the person required to pay may allege that they don’t have the money and can’t get the money and therefore, they are not in contempt of court.
In my experience, the Cook County courts usually dismiss that defensive argument and establish a purge amount lower than the entire amount owed. For example, if a party owes $ 10,000 a court may hold him in contempt and set his purge at $ 2,000. This means the party needs to pay $ 2,000 to avoid being incarcerated or pay $2,000 to be released from custody of the Cook County Sheriff.
There is another way to collect on past due child support: you can go directly after the person’s assets.
Section 505(d) of the Illinois Marriage and Dissolution of Marriage Act provides that:
“Any new or existing support order entered by the court under this Section shall be deemed to be a series of judgments against the person obligated to pay support thereunder, each such judgment to be in the amount of each payment or installment of support and each such judgment to be deemed entered as of the date the corresponding payment or installment becomes due under the terms of the support order. Each such judgment shall have the full force, effect and attributes of any other judgment of this State, including the ability to be enforced. Notwithstanding any other State or local law to the contrary, a lien arises by operation of law against the real and personal property of the obligor for each installment of overdue support owed by the obligor.”
So this judgment can become a lien against the person who owes child support’s property.
A lien is “a legal right or interest that a creditor has in another’s property lasting usually until a debt or duty that it secures is satisfied.” – Black’s Law Dictionary 8th edition (2004)
Typically, liens are applied against bank accounts and/or real estate.
A lien on a bank account usually results in a frozen bank account until a separate order of court orders a turnover of the funds.
A judgment becomes a lien on real estate when evidence of the judgment is recorded in the county in which the real estate is located.
This recording of the lien at the recorder of deeds office prevents any owner of that property from selling or transferring that property without resolving the lien.
Typically, this becomes enough to force turnover of the funds by the party who owes the child support. There is no reason, however, that your lawyer cannot both file a petition for rule to show cause (and adjudication on indirect civil contempt) and put a lien on the delinquent parent’s property.