For parents struggling to collect court-ordered payments in Illinois, the law offers a pathway to potential criminal charges against a non-paying ex-spouse. However, navigating this process is difficult, as state prosecutors rarely prioritize these cases unless you demonstrate that you have exhausted all available civil remedies first.
Steps to Pursue Criminal Prosecution
- Assess if your situation meets the legal threshold. Before considering criminal action, check if the payments have been missed for more than half a year or if the accumulated debt exceeds $5,000.
- File a petition for civil contempt in family court. You must start your enforcement efforts in divorce court, as using a motion for indirect civil contempt allows a judge to verify the debt and the payor's refusal to follow the standing mandate.
- Gather evidence regarding the payor's ability to provide funds. You need to demonstrate that the other person had the financial means to make payments, as the law presumes they can afford the ordered amount, and you must show they were willfully refusing to comply.
- Request a body attachment order. If the payor continues to ignore the directive, ask for a body attachment, which functions as a civil order for law enforcement to detain the individual until they can purge the contempt by making the required payments.
- Present your findings to the local State’s Attorney. Once you have a documented history of your civil enforcement efforts, take that evidence to the prosecutor to show them that the matter is serious and worthy of their limited time and resources.
- Ensure there is sufficient evidence for probable cause. Understand that a prosecutor must find probable cause to proceed, meaning they need to believe a reasonable person would conclude the payor committed the offense, which is why your organized records are helpful.
- Look into federal alternatives if the payor has moved. If the payor has fled the state, you might consider federal laws regarding support obligations, though these statutes apply specifically to child support and generally do not cover pure maintenance obligations.
- Anticipate the defense of inability to pay. Prepare for the argument that the payor simply had no money, as a genuine inability to pay can serve as a defense in both civil and criminal contexts, and the payor will likely attempt to use this to explain their non-compliance.
If you are pursuing these actions, keep in mind that the government requires proof that you have exhausted other options before they will invoke their powers of prosecution. Having a detailed, verified record from your civil case allows the prosecutor to establish the necessary facts for a criminal case. For the full detail, including the exceptions, see the firm's full write-up.
About the author
Russell D. Knight is a Chicago divorce lawyer and the author of the Illinois Institute for Continuing Legal Education (IICLE) Family Law: Dissolutions of Marriage Court Proceedings 2024 Edition. He has written more than 750 articles on Illinois family law and has been quoted by NBC News, Parents Magazine, Inc. Magazine and Newsweek.
Where to find us
Law Office of Russell D. Knight is at 1165 N Clark St, Suite 700, Chicago, IL 60610, and the phone is (773) 334-6311.
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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.
