By Law Offices of Gretchen Schrader
Once a court order or final divorce judgment has been entered by a Judge, the terms contained therein become enforceable. This means that if one party does not comply with the agreement, the other party can go back to Court and seek enforcement. For example, if an order provides that one party is to pay the other $1,000.00 per month for child support and the supporting party fails to do so, the receiving party can go back to Court and request that the order be enforced so the support is paid.
What is Enforceable?
The only enforceable terms are those contained in a court order or agreement that has been entered in Court. Verbal agreements/modifications to the original order cannot be enforced by returning to Court. Using the earlier example, if an order provides that one party is to pay the other $1,000.00 per month for child support and the parties later verbally agree to increase the amount to $1,500.00 per month, the original amount ($1,000.00) is the enforceable term. Therefore, if the supporting party stops paying, the receiving party can only enforce the order at the $1,000.00/month rate.
What gets filed to enforce an order?
In order to enforce terms of a court order, one party usually files a Petition for Rule to Show Cause or a Petition for Contempt (“Petitions to Enforce”). Both are similar in that the filing party is asking that the non-complying party be held in contempt and forced to comply with the order.
What is the process after a Petition to Enforce is filed?
Once filed, the filing party must demonstrate the order was not followed. This can be as simple as signing the Petition swearing, under oath, (“Verified Petition”) that the other person has not complied. The burden then shifts to the alleged violator to show sufficient cause as to why the order was not followed. The alleged violator can show that the order was followed or that there is compelling cause and justification why the order was not followed. For example, perhaps the person who was ordered to pay the child support had been injured and was not earning income for a period of time and, hence, unable to pay the support.
What can the Court do after a Hearing on a Petition to Enforce?
After hearing the evidence, if the Court finds that the alleged violator has not shown compelling cause or justification for his/her non-compliance, the Court can find the person in contempt and then set a penalty and a way for the person to end the penalty. For example, if the Judge finds that the violating party did not show sufficient cause for not paying child support, the person can be remanded (placed in custody) with the Sheriff’s department and then set a fixed amount (a “purge”) that must be deposited in order to be released. Once these funds are deposited, the person is released from custody and the funds are given to the party who filed the Petition to Enforce to satisfy the amount he/she was supposed to receive pursuant to the original order.
The Court can also determine that the violating party has shown sufficient cause for not complying. If this occurs, the party still must comply with the order. However, the violating party will not be penalized by being taken into custody as he/she would be if there were not sufficient justifications for the noncompliance.
If the Court finds that one party has violated a Court Order and has not shown sufficient cause or justification for his/her non-compliance, the Illinois Marriage and Dissolution of Marriage Act provides that the Court must award the injured party reasonable attorney’s fees incurred for seeking enforcement.
In your family law case, if the Court enters an Order or Agreement then you can seek enforcement if the other party does not comply. Whether it is the failure to pay child support, or a party not selling real estate as agreed, or not allowing you the parenting time you are scheduled to have, you can easily seek enforcement by the Court. If the violating party cannot show good cause for his/her failure to comply, you can be awarded the fees you incurred in bringing the enforcement action.