Illinois courts award maintenance (formerly known as alimony) from the spouse earning the larger income to the spouse earning the smaller income (or with no income at all).

Maintenance is awarded as a specific amount of money to be paid for a specific duration of time.

The maintenance payor must pay that amount of maintenance on a regular basis for the entirety of the period of time as ordered by the court.

If the maintenance paying spouse fails to pay maintenance…everyone has a problem.

Contempt For Not Paying Maintenance In Illinois

Failure to pay maintenance can result in an indirect finding of civil contempt. Contempt of court is a big deal in Illinois.

Courts take their orders very seriously. After all, if a court cannot enforce its own orders…what is the point of even issuing these orders.

“Vital to the administration of justice is the inherent power of courts to compel compliance with their orders.” Sanders v. Shephard, 645 NE 2d 900 – Ill: Supreme Court 1994

Contempt can be indirect, direct, civil or criminal.

 “Indirect contempt occurs outside the presence of the court.” Weglarz v. Bruck, 470 N.E.2d 21 (Ill. App. Ct. 1984)

“Civil contempt is a sanction or penalty designed to compel future compliance with a court order.” Felzak v. Hruby, 226 Ill. 2d 382, 391, 876 N.E.2d 650, 657 (2007)

Failure to pay maintenance is almost always indirect civil contempt. The maintenance was not paid outside of court (obviously) and the court just wants to make the payor start paying again.

Proving that a party to a court order is in indirect civil contempt requires a few initial steps by the other party.

“[C]ivil contempt occurs when a party fails to do something ordered by the trial court, resulting in the loss of a benefit or advantage to the opposing party. Contempt that occurs outside of the presence of the trial court is classified as indirect contempt.  The existence of an order of the trial court and proof of willful disobedience of that order are essential to any finding of indirect civil contempt.  The burden initially falls on the petitioner to prove by a preponderance of the evidence that the alleged contemnor has violated a court order.” In re Marriage of Charous, 855 NE 2d 953 – Ill: Appellate Court, 2nd Dist. 2006

After the other party has proven that the order exists and the other party violated the order, ”[t]he burden then shifts to the alleged contemnor to show that noncompliance with the court’s order was not willful or contumacious and that he or she had a valid excuse for failure to follow the court order.“ In re Marriage of Charous, 855 NE 2d 953 – Ill: Appellate Court, 2nd Dist. 2006

Willful means “voluntary and intentional.” Black’s Law Dictionary (11th ed. 2019)

Contumacious means “conduct calculated to embarrass, hinder, or obstruct a court in its administration of justice or lessening the authority and dignity of the court.” In re Marriage of Fuesting, 228 Ill.App.3d 339, 349, 169 Ill. Dec. 456, 591 N.E.2d 960 (1992)

These steps are much easier when a former spouse fails to pay maintenance because “noncompliance with an order to pay maintenance constitutes prima facie evidence of contempt.” In re Marriage of Anderson, 951 NE 2d 524 – Ill: Appellate Court, 1st Dist., 5th Div. 2011

The other party merely needs to allege, “I didn’t get my maintenance payment” and the burden of proof that the failure to pay maintenance was neither willful nor contumacious falls on the maintenance payor.

Defending A Failure To Pay Maintenance After An Illinois Divorce

The party who was supposed to pay maintenance needs to explain what happened in order to avoid a finding of contempt.

To avoid a finding of contempt, the spouse that failed to pay maintenance “must prove that [they] neither has money now with which to pay, nor has he wrongfully disposed of money or assets with which he might have paid” In re Marriage of Anderson, 951 NE 2d 524 – Ill: Appellate Court, 1st Dist., 5th Div. 2011

The same proof required to avoid contempt for failure to pay maintenance is the same proof required for a motion to modify maintenance.

“Under Illinois law, all maintenance awards are reviewable.” In re Marriage of Kasprzyk, 128 NE 3d 1105 – Ill: Appellate Court, 4th Dist. 2019

What really needs to be explained is what changed in the payor’s life that caused them to be unable to pay maintenance per the order.  

“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)

Even if a change was significant enough to substantially reduce the income of a maintenance payor, an Illinois court will look to what the maintenance payor could earn.

“[I]f a court finds that a party is not making a good-faith effort to earn sufficient income, the court may set or continue that party’s support obligation at a higher level appropriate to the party’s skills and experience.” In re Marriage of Sweet, 316 Ill. App. 3d 101, 107 (2000)

The key to not having income imputed for the purposes of paying maintenance is whether the failure to earn what the payor used to earn was based on a “good faith effort.”

“Illinois appellate courts have developed three primary factors to consider in determining when it is proper to impute income to a [support payor]. In order to impute income, a court must find that one of the following factors applies: (1) the payor is voluntarily unemployed (2) the payor is attempting to evade a support obligation); or (3) the payor has unreasonably failed to take advantage of an employment opportunity. If none of these factors are in evidence, the court may not impute income to the [support payor].” In re Marriage of Gosney, 394 Ill. App. 3d 1073, 1077 (Ill. App. Ct. 2009) (citations omitted)

Furthermore, any maintenance modifications can find that the maintenance payee is earning more than they when the order was entered. This maintenance recipient’s income reduces the maintenance they are entitled to by 25% of their income.

“Maintenance…shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income.” 750 ILCS 5/503(b-1)(1)(A)

A reduction in the maintenance payor’s income and/or an increase in the maintenance payee’s income, can result in a calculation that eliminates maintenance all together if the maintenance payor is making less than twice what the maintenance recipient is earning.

“The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.” 750 ILCS 5/503(b-1)(1)(A)

A failure to pay maintenance can quickly turn into a permanent reduction or termination of maintenance. Because of this possibility, these matters are highly contested because the stakes are so high.

Penalty For Failure To Pay Maintenance In An Illinois Divorce

If the court finds that the maintenance payor was willful and contumacious in their failure to pay maintenance, the court will find the maintenance payor in contempt.

Once found in contempt, the court will set a “purge.”

“A valid contempt order must contain a purge provision, which lifts the sanction when the contemnor complies with the order.”  Marriage of Knoll, 2016 IL App (1st) 152494 (citations and quotations omitted)

The purge is the amount the maintenance payor must pay to be “out of trouble.”

The contempt purge must be payable.

“[A] finding of civil contempt is not proper unless the ability to purge a contempt finding is within the power of the contemnor.” Marriage of O’Malley, 2016 IL App (1st) 151118

If the purge was not payable…the maintenance payor probably would not have been found in contempt in the first place.

If the purge is not paid, the court can ask that would-be maintenance payor be incarcerated until further order of court.

If the would-be maintenance payor is physically before the court, the court can order the maintenance payor into custody for direct civil contempt of court (the evidence in court will have shown that the maintenance was not paid).

If the would-be maintenance payor is not in court (usually because they know the above would happen), the court can instruct the sheriff to find the would-be maintenance payor and put them in jail.

“In any proceeding to enforce an order for support, where the obligor has failed to appear in court pursuant to order of court and after due notice thereof, the court may enter an order for the attachment of the body of the obligor. Notices under this Section shall be served upon the obligor by any means authorized under subsection (a-5) of Section 505.” 750 ILCS 5/713(a)

The would-be maintenance payor will remain in jail until “after he or she has deposited the amount of escrow ordered by the court pursuant to local procedures for the posting of bond,” 750 ILCS 5/713(b)

This cycle of body attachments and purge payments goes on until the maintenance payor is current with their ordered payments. After it is all over, the maintenance payor must then pay for their former spouse’s attorney’s fees for the hassle the maintenance payor’s lack of payments caused.

“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 5/508(b)

The Inevitable Conundrum Triggered By The Failure To Pay Maintenance After An Illinois Divorce

Failure to pay maintenance is a real chicken/egg scenario.

The payor stops paying maintenance.

The payee laments that the payor is a loser.

The payor agrees that they have fallen on hard times and can never hope to recover, so they file a motion to modify maintenance.

The payee then claims the payor is, in fact, a hardworking, business genius and always will be.

The payor must then spend money to hire a lawyer and craft a clever argument about how they are broke, hopeless and always will be.

In the end, one party is severely disappointed after a failure to pay maintenance. Do not let yourself be the party who ends up severely disappointed. Contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.