At the end of your divorce you’ll receive a final document that says your spouse must pay you X dollars in maintenance (formerly knowns as alimony) every month. That final divorce decree will be emblazoned with an Illinois divorce judge’s signature and be as good as law. But, what if your spouse stops paying your maintenance…or never even starts? What is the recourse for non-payment of alimony in Illinois? How do you enforce alimony in Illinois?
What Does An Order For Maintenance (Formerly Known As Alimony) Look Like In Illinois?
At the end of your divorce you will enter three documents; a Judgment For Dissolution of Marriage, a Marital Settlement Agreement, and (if you have children) an Allocation of Parenting Time and Parenting Responsibilities.
The Judgment for Dissolution of Marriage grants the actual divorce and lays out non-child and non-financial issues like reverting the wife’s name back to her maiden name and the jurisdiction of any future disputes.
The Allocation of Parenting Time and Parental Responsibilities lays out the children’s schedule and might deal with the children’s expenses.
The Marital Settlement Agreement divides the marital and non-marital debts and assets. The Marital Settlement Agreement also awards maintenance (formerly known as alimony).
One of the articles in the Marital Settlement Agreement will be titled “Maintenance” and will read something like this:
“_________is not able to support herself from her income and her share of the assets without contribution from __________. ____________shall be awarded maintenance in the amount of $__________ per month for a total of ___________years. The amount and term of the maintenance shall be non-reviewable and non-modifiable until ______________. ______________shall be the last date for payment of maintenance in the amount of ___________. After the first termination event of the following occurs, all of the payments pursuant to this paragraph shall terminate. Termination shall not apply to any arrearages remaining unpaid on the termination date.
c. ___________’s cohabitation with another person on a residential continuing conjugal basis; and/or
d. _________’s death;”
How Do you Collect Maintenance (Formerly Known As Alimony) In Illinois?
Sometimes there will be instructions on how and when the maintenance payor is to pay but that only occurs if the maintenance payor is a strict W2 employee with zero variability in their pay (no bonuses).
Usually, the receivers of maintenance in Illinois are at the whim of the payor to make the payments.
While people who collect child support can ask the Illinois State Disbursement Unit to garnish their ex-partner’s check, people who collect maintenance cannot.
The Illinois State Disbursement Unit will not help collect on maintenance orders. For the Illinois State Disbursement Unit “”order for support” shall not mean orders providing for spousal maintenance under which there is no child support obligation.” 750 ILCS 5/507.1
So, you just have to hope that your ex-spouse reliably sends you your maintenance check every month.
What Do You Do If Your Ex-Spouse Does Not Send You Your Maintenance On Time?
In Illinois, if your ex-spouse misses a maintenance payment or stops paying you altogether, you must file a Petition For Rule To Show Cause For Indirect Civil Contempt
“Indirect Civil Contempt” is an action by a litigant violating an order outside of the presence of the court. Therefore, the non-violator has to give the court a little bit of evidence of the violation in order to establish the contempt proceedings. Weglarz v. Bruck, 128 Ill. App. 3d 1, 8, 470 N.E.2d 21, 26 (1st Dist. 1984).
Consequently, the “accused contemnor must be given notice, a fair hearing and an opportunity to be heard.” Id.
In Chicago, Cook County, there are a lot of local rules that accompany what must happen in a petition for contempt.
“(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.” Cook County Rule 13.8(i)
Your petition for contempt must lay out and quote the exact portion of the order your spouse violated and how they violated it. You must then verify your petition for contempt with a signed affidavit stating these things to be true.
“(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” Rule 13.8(ii)
You must attach the original order which you are accusing your ex-spouse of violating to your petition for contempt.
Then in court, the judge will decide if you’ve made a prima facie showing of non-compliance. (“Prima facie means “good enough on a first impression”)
The failure to comply with a maintenance order is prima facie evidence of contempt. In re Marriage of Logston, 103 Ill. 2d 266, 285, 469 N.E.2d 167, 175 (1984).
Once the court has seen that the maintenance has not been paid, the court “issues a rule to show cause” on the court’s own special order
“(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(iii)
(iv) 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. Cook County Court Rule 13.8(iv)
The Cook County Rule To Show Cause Order can be found here.
A Rule To Show Cause issuance is serious stuff. It orders the alleged contemnor (the order violator) to come into court and explain themselves. The Rule To Show Cause issuance usually has to be served directly upon the accused party.
(v) 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).
Most judges allow you to send it via certified mail as the order violator is already a party to the case.
The burden of proof is now on the alleged contemnor to prove that their failure to pay maintenance was neither willful nor contumnacious. “The party failing to make the allowances ordered has the burden of proving that his failure to comply was not willful or contumacious and that he has a valid excuse for his failure to pay.” In re Marriage of Elies, 248 Ill. App. 3d 1052, 1058, 618 N.E.2d 934, 939 (1993)
The alleged contemnor will always say “I just didn’t have the money. I wanted to pay but I couldn’t.”
This is not enough. The alleged contemnor must prove their own inability to pay. This is usually done with recent bank statements and an updated financial affidavit.
Thus begins a cat and mouse game where the owed spouse then tries to prove that the alleged contemnor does have the money but spent it on a vacation or some other pseudo-frivolity.
Usually, the excuse is never sufficient unless the circumstances are truly tragic and the alleged contemnor is found in contempt of court.
“(vi) Findings of Contempt – Every finding or adjudication of contempt shall be by written order and shall contain specific findings of fact…Upon every finding of contempt that results in incarceration, a form order of commitment provided by the court shall be used.” Cook County Court Rules 13.8(vi)
Most findings of contempt don’t simply say “you’re in contempt and you have to pay.” Instead they set a “purge.”
A “purge” is an action (usually the payment of reasonable amount of money) which the contemnor must perform by the next court date or be taken into the custody of the local sheriff.
“(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(vii)
Every contemnor comes up with the purge money, or they go into the sheriff’s office with handcuffs and start calling their mother for the money. If the contemnor can’t come up with the money, he usually spends the night in jail.
After a few nights in jail without a soul willing to help pay the purge, an Illinois divorce judge will start to believe that the contemnor’s behavior truly wasn’t either “willful or contumacious.” In my experience, this only happens in the most hopeless of cases.
I have told many a contemnor, “Next time I see you, don’t bother wearing a belt of shoelaces because the sheriff will just take them away from you when they put you in lock up.” It is important to be both stern and helpful.
Who Is Going To Pay My Attorney’s Fees For Enforcing My Alimony Order In Illinois
If your ex-spouse is held in contempt for failure to pay maintenance, your ex-spouse MUST pay the attorney’s fees that were necessary to enforce the order.
“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).
Usually, you get the enforcement taken care of and paid and then you come in on a second motion for attorney’s fees. This strategy keeps you from initially “muddying the waters” with an additional issue. It also lets you pursue more money after your ex-spouse has just proven they can pay.
Other Ways To Collect Maintenance (Formerly Known As Alimony) In Illinois
Whenever a court deems via order that someone owes you money, that’s called a judgment.
“Each [maintenance] judgment shall have the full force, effect and attributes of any other judgment of this State, including the ability to be enforced….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.” 750 ILCS 5/504(b-7)
You can collect on the judgment outside of the jurisdiction of your current Illinois divorce court. Just hire a collections attorney to take that judgment to the civil division of your courthouse and begin the collections process in that court (this includes garnishment of the obligor’s paycheck)
Be Careful What You Wish For…Your Ex-Spouse Is Going To Modify Their Maintenance
Your ex-spouse didn’t stop paying you just because they felt like it. Something happened. It might not be a worthy excuse but, in your ex-spouse’s mind, something happened that warranted paying everyone else BUT you.
If you take your ex-spouse to court right away, he or she is likely to file a motion to modify maintenance.
The minute they file a motion to modify maintenance, they no longer owe the old maintenance amount but will, rather, owe the new maintenance amount (once ordered).
“[T]he provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification. 750 ILCS 5/510(a)”
So, maybe you want to wait a while so that whatever temporary emergency that beset your ex-spouse can pass. Your ex-spouse will still owe you the full amount.
If your ex-spouse does proceed with their motion for modification, they have a lot of options.
“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)
These substantial changes of circumstance can include:
“(1) any change in the employment status of either party and whether the change has been made in good faith;
(2) the efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate;
(3) any impairment of the present and future earning capacity of either party;
(4) the tax consequences of the maintenance payments upon the respective economic circumstances of the parties;
(5) the duration of the maintenance payments previously paid (and remaining to be paid) relative to the length of the marriage;
(6) the property, including retirement benefits, awarded to each party under the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage and the present status of the property;
(7) the increase or decrease in each party’s income since the prior judgment or order from which a review, modification, or termination is being sought;
(8) the property acquired and currently owned by each party after the entry of the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage; and
(9) any other factor that the court expressly finds to be just and equitable.” 750 ILCS 5/510(a-5)
This list essentially covers EVERYTHING. So, be especially careful when pursuing a missed maintenance payment. You may start in righteous indignation only to find, months later, that the Illinois divorce judge sees you as “kicking a dog when he is down.”
To learn more about when you should pursue recourse for non-payment of alimony and when you should just let that “sleeping dog lie” contact my Chicago, Illinois family law firm to learn more about the entire process from an experienced Chicago divorce lawyer.