In cases where an ex-spouse violates a court order – such as not paying child or spousal support, or violating the terms of a parenting agreement – there are steps a party can take to enforce the order. In this podcast, Chicago family lawyer Candace Meyers answers common enforcement-related questions and walks listeners through the process of enforcing a court order.
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Hosted by: Dan Couvrette, CEO and Publisher of Divorce Magazine
Guest speaker: Candace Meyers, Family Law Attorney
Candace Meyers is a family law attorney at Boyle Feinberg, P.C., a law firm in Chicago, Illinois that focuses on high-asset divorce cases. Candace helps business owners, highly compensated executives, and their spouses protect their rights and preserve their wealth. To learn more about her firm, visit www.bffamlaw.com.
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Read the Transcript of this Podcast Below.
What is a court order?
A court order is either an agreement that is made by the parties and is stamped by the judge and not the clerk. Or it’s an order that’s issued by a judge after a hearing or argument.
Is a court order different than a judgment?
The terms are different and there are nuances, but generally a court order in Illinois is considered to have the same weight as a judgment. A judgment may be all-encompassing of the entire case, so it will be a judgment for dissolution of marriage or a judgment for fees, or something of that nature in order to cover a variety of temporary topics.
It’ll be an order stating, for example, that one spouse must convey the property to the other spouse, and the judge stamps it. Or the order may say that child support shall be paid in the amount of $700 per week and is stamped by the judge. The order can cover any topic from property being transferred from one spouse to the other or it could be monetary in terms of spouse support or maintenance.
What is the first step someone should take if their spouse violated an order having to do with paying support or paying certain children’s costs?
For the purpose of this podcast, I’m directing a lot of my answers towards children and child-related costs or violations of parenting time. But just to be clear, any sort of violation of a court order, a party would take the same steps. But for our purposes of conceptualizing this, I’m going to answer in terms of child-care costs.
What I would suggest a person do first is make sure that the requests are made, that the party who is seeking enforcement has made those requests, that they don’t just think that their spouse remembers all of the terms in an order or a judgment and expects them to remember that they’re supposed to pay certain requirements.
I would suggest and advise to a client that they’ve made sure that all of the requests they make to the other party are well documented. It is not my suggestion that in passing they yell from one car to the other car, “Hey, you owe me $7,000 in my spousal support and you haven’t paid it,” or, “You owe $6,000 as reimbursement for the children’s camp costs and you haven’t paid it.” I would suggest that the requests are well documented, whether it’s an email that you can save or a letter that the party who is seeking enforcement keeps a copy of.
I would advise that the party that is seeking the funds and seeking enforcement is clear in communicating what those funds are and what they’re seeking reimbursement for. I think a big problem with a lot of my clients is perhaps they wait for six months to accrue and large sums of money have gone from their pocket to the camp, to the activity. A party will ask for a lump sum of $17,000, for example, and not clearly delineate to the other party what those expenditures are for.
After making all of those communication efforts, I would suggest that a person hire an attorney and try to communicate to the spouse or their attorney what reimbursement they’re seeking. I think that hiring a knowledgeable attorney who is well read and has established enforcement proceedings is paramount.
What type of documentation does an attorney need to help someone enforce an order?
Communication records – whether they’re emails, letters, or texts – are not preferred because it’s hard to get those from the source, and they don’t have a timestamp generally. Receipts are very important, invoices are very important, proof of payment is very important. All of those things would be helpful to seek enforcement. Ultimately when an attorney files a petition for enforcement, they would attach a copy of the order or judgment they’re seeking to enforce, a copy of the communication showing that they’ve asked for reimbursement and are asking for enforcement, and a copy of the receipts and the bills and the invoices.
You talked about how to keep track of the expenses and how critical that is. I’m sure you coach your clients to make sure that they keep track of their expenses, would that be accurate?
Absolutely. I’ve represented individuals who come to me for a dispense of an enforcement petition, and they come in and say, “Candace, I don’t believe I violated the judgment. She’s asking me to reimburse for half of the car that was purchased for our teenager. It is not in the judgment requiring us to purchase a car, and I don’t think that I’m required to reimburse her for that.” I defend those.
Or if a party comes to me and says, “I don’t believe I violated this and I don’t remember her or him ever asking for reimbursement, and I didn’t even know that this activity existed.” It goes on both sides where communication, requests, and documentation are very, very important.
How can someone collect past due child support?
First, they would make a request for the person to pay. Then I would suggest that a party is very diligent in making that request for not even just child support, but also orthodontic costs, medical costs, or extracurricular costs. The person seeking reimbursement should be diligent and not let months and months languish. If after making diligent requests the party is unsuccessful, my suggestion is they hire an attorney to file a petition for enforcement.
Does the judgment earn interest?
For example, child support does earn 9% of interest per year. If someone is not paying child support for a long period of time, the arrears will accrue 9% interest, which definitely accumulates. The judges are required to respect that as it’s in the statute.
We often see television shows where people are in the court and the judge says that the person is in contempt of court. What does that actually mean to be in contempt of court?
To be in contempt of court, it is a violation of the court order or a directive of the court. You can be in direct contempt of court, which is in front of the judge in the actual courtroom. The judge directs someone to control themselves, and if they don’t, they can be held in direct contempt of court. If a person violates a court order, then that is outside the courtroom generally and it is indirect contempt of court.
What is the difference between civil and criminal contempt of court in a family law case?
Civil contempt, which is most generally indirect contempt, is violating a court order for a certain sum of money or a certain act or transfer of property, for instance, that can be solved, that can be enforced. The contemptor can purge their contempt, they hold the key to their own jail cell. A judge may hold them in indirect civil contempt of court until they pay $17,000 in child support arrears, or a judge may hold them in indirect civil contempt of court until they transfer the IRA funds to the other spouse.
The difference in criminal contempt is there’s no purge available. For example, if someone is speaking ill about the other parent in front of the children, there’s no purge available, there’s no dollar amount that you can place on someone to fix their contempt. There’s no dollar figure that you put on a missed parenting time visit or missed holiday. Civil contempt of court has a monetary value, and for criminal contempt there’s no purge available.
What if a spouse violated terms of a parenting agreement or an allocation judgment?
If a spouse violates the terms of a parenting agreement in terms of parenting time, for instance, or holiday time, I would suggest the party seek an attorney’s advice. I would ask, is this consistent? Are they always missing holidays? Is the person interfering with the children’s best interest? Are they not getting to school on time? How extensive is it? Is it that the party is 15 minutes late because they’re sitting in Chicago traffic and it could not have been avoided, or is it every single weekend? I would balance how extensive the violation is. What a spouse, or an ex-spouse, can do is call the police; you file a report and they would have to file a separate action to get criminal contempt proceedings underway.
Are there any other examples of parenting time interference?
When a party interferes or violates the other party’s parenting time – if a party has every other weekend, for instance, and the other party leaves town and the party whose time it is is unable to exercise their parenting time, or if there’s a holiday and they’re unable to celebrate with the children – that would be a violation in parenting time interference. Or it could be as simple as calling the other parent while they’re with the children incessantly once an hour – that would be interfering with their parenting time.
When a party interferes or violates the other’s parenting time, there are certain punishments like make-up parenting time or court-ordered counseling. There could be fines or reimbursement for attorney fees in seeking punishment for the violation of the parenting time. But again, I talk to my clients about how extensive is it. Is it to the point where it’s not in the children’s best interest or endangering the children? Or was it a one-time occurrence that couldn’t have been avoided and there’s a balancing act.
If somebody has to seek enforcement of a court order, can they get their spouse to pay their attorney’s fees to do so?
It’s not absolute, but there is a provision within our statute that does allow it. If a court finds that someone’s violation of a court order is without good cause or justification, then yes, a court will award attorney’s fees for the time, attorney fees expended for us seeking enforcement. If it’s for discovery, for instance, getting reimbursed for those attorney fees should be automatic because in our statutes, discovery violations are presumed to be without cause or without justification. The court should be awarding fees for misuse of litigation or having someone have to seek enforcement of a court order.