Enforcement of divorce judgments

ENFORCEMENT OF DIVORCE JUDGMENTS

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Once the ink is dry on your divorce judgment, you may think your troubles are over. We are always hopeful that both parties will abide by the terms of the agreements that were made and the judgments that were entered. Unfortunately, that isn’t always the case. When this happens, it may be necessary to bring an action against your spouse to compel him or her to comply with your agreement or the Court’s decision. This action is called an enforcement of judgment. This could be about money issues or children’s issues.

Family law courts have the legal authority to enforce their own judgments and orders. This gives you and your spouse protection both during and after the divorce decree is finalized. Failure to comply with a court order may place the offending party in contempt of court, which is punishable by fees, sanctions and possibly jail if it is serious enough. Illinois law provides that if a party knowingly violates a family law court order or judgment, that party is responsible for reasonable attorney’s fees incurred by the other party.

If your ex spouse or partner is violating a court order or divorce decree, you should first communicate directly with him/her advising of the provision of the order or decree that is being violated. You should keep track of the violation(s) and try to resolve them amicably. You may have a lawyer reach out to your ex’s attorney to attempt to compel compliance. Your last resort is to bring your ex back to court.

In Illinois, enforcement actions after a divorce must clearly outline:

The obligation the spouse had — This can be anything from making a child support payment to taking a specific action, like listing property for sale or assisting with childcare. It’s important that the obligation be clearly defined and supported by a prior court order. After all: if it wasn’t ordered, it can’t be enforced.
The obligation wasn’t complied with — Once it’s established that a spouse had an obligation, it must be shown or alleged that the obligation wasn’t met. You can’t enforce an order that was already complied with.

The party had the ability to comply — For instance, if a parent had an obligation to pay child support and failed to, did he or she have the money to make the payment?
The failure to comply was willful — This goes hand-in-hand with the prior point. If a spouse had the ability to comply and chose not to, his or her violation is willful and contemptuous of the court’s order.

Sometimes I advise clients to wait before spending the money on enforcement. For instance, I had a client whose ex refused to pay for certain extracurricular activity costs because he did not like the fact his children were engaged in them. The unpaid amount was $350. I advised the client to keep track of any further violations and when and if there was enough money owed, we would take him back to court. Otherwise, it would have cost more than it was worth. Remember, a divorce decree and court orders are the law and violating the terms can be expensive.