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Failure to Pay Child Support may lead to Jail in Chicago, Illinois

It may take a while, but it is definitely possible for failure to pay child support in Chicago.

When the gavel comes down and the judge has ordered child support, much like any other order from a judge, failure to abide by the order can put you in jail.  Even more so, failure to pay the ordered amount can land you in jail as well.

One of two instances usually occur.  This is how it generally happens….

1 - The co-parent

The parent who receives child support may file a petition stating that they have not received child support and request the court hold the child support payor in contempt.  Meaning, the person obligated to pay child support would likely be held in contempt and may end up in jail for failure to pay.  Even more, the child support payor may remain in jail until the balance or a determined portion is paid. This is called “the purge,” and is discussed further down in the reading. The co-parent seeking the petition must prove that they are “innocent.”  This is the “rule to show cause,” where the co-parent must prove they have been acting in accordance with any orders and not prohibiting the payment of child support in any fashion.

2 - The County Attorney

The county may seek a petition on behalf of the co-parent.  This is especially true if the child is receiving any form of aid from the state, such as KidCare.  KidCare is a state provided health care plan for children in the state of Illinois.  In essence, the Cook County State Attorney can request that you be put in jail for failure to pay child support.

Either way, whether it’s the co-parent or the State, failure to pay child support can land someone in jail.  Once a petition is filed a court date is set and the parent obligated to pay child support must prove that they have not violated the court order to pay child support.  If the co-parent can not show that they have not violated a court order they will likely be found to be in contempt.

Being Held In Contempt

When the rule is issued after a prima facie showing that the order was violated the alleged violator, the co-parent who failed to pay child support, must prepare for a hearing on the petition for rule to show cause. Prima facie simply means that there is proof a missed or missing payments.    

The non-paying co-parent must show that their failure to pay was not “willful or contumasciously.”  This simply means that the failure to pay was not done on purpose.

For example, proving that you could not pay the child support because you were out of work and not able to find work is enough to keep you from being held in contempt of court for not paying child support.

If you find yourself not able to pay the entire amount per the court order, an attempt to pay something will look better for you.  It shows that you are willing and not trying to abide by the court’s orders. For example, if you owe $ 500 and you paid $ 100, it looks like you are not simply refusing to pay child support.

On the other side of the coin, if a judge finds that you willfully and contumasciously violated the child support order you will be held in contempt of court.

Contempt of Court

“Every finding or adjudication of contempt shall be by written order and shall contain specific findings of fact. In cases involving child support arrears, the order shall state the precise amount of any arrearage found to be due and owing. Upon every finding of contempt that results in incarceration, a form order of commitment provided by the court shall be used.” Cook County Court Rule 13.8(a)(vi)

While you are held in contempt, and likely in jail, the Chicago court will assess exactly how much the arrearage is.  This is a determination of how much child support is owed from the missed payments.  In an attempt to show that a co-parent is not trying to willfully neglect the court order, the co-parent may ask for an accounting review from the Illinois Division of Child Support Services.  The co-parent would need to admit to owing money, but they simply need clarification on how much.  A review usually takes at least 90 days so this gives the co-parent time to catch up and avoid getting into more trouble.

Once you are held in contempt of court, you are stuck in a state of contempt until you have “purged” the contempt.  Purge means you must do something to remedy the problem.  This means either pay the balance of what is due (the amount of money needed to catch up).  While the court may order that 20% of what is owed be paid for the contempt order to be lifted, the amount due is generally left up to the judge. 

Don’t or Can’t Pay the amount owed?

You’re going to jail until you pay the purge, and will remain there until you can show the judge you are paying or have a way to pay the purge.  Once in jail, you will have regular court visits for the judge to assess your progress on payment

If you’re not in court for the Cook County Sheriff to take you into custody, the court will issue a “body attachment” which is essentially a warrant for your arrest instructing the Cook County Sheriff to go looking for you and take you into custody.

Again, judges often have a change of heart if you pay at least some of the purge.  A payment is better than no payment at all.  For example, if the amount owed is $2,000 and you come to court with $ 1000, a judge is likely give you more time to pay the balance.  Always make it a point to bring money with you to your court hearing to show that you are willing to pay.

The Cook County Sheriff Can’t Arrest Me If I’m Not in Cook County, Right?

If a body attachment has been issued to the Cook County Sheriff for your arrest, the Cook County Sheriff is responsible for taking you into custody.  Evading an arrest warrant will not favor too kindly for you.  Even more so, the Cook County Sheriff will simply ask the county you’re in to take you into custody.

Additionally, body attachments are enforced by States outside of Illinois as all states have adopted the Uniform Interstate Family Support Act.  You may be arrested pursuant to the warrant in any state.  Even more so, if there is a balance over $2,000, you run the risk of your passport being revoked prohibiting you from traveling in and out of the country.

Is Not Paying Child Support A Crime In Illinois?

While 99% of non-payment of child support cases are resolved in the civil divorce courts via the petition for rule to show cause, failure to pay child support is a crime in Illinois.

“A person commits the offense of failure to support when he or she:

willfully, without any lawful excuse, refuses to provide for the support or maintenance of his or her spouse, with the knowledge that the spouse is in need of such support or maintenance, or, without lawful excuse, deserts or willfully refuses to provide for the support or maintenance of his or her child or children in need of support or maintenance and the person has the ability to provide the support…A person convicted of a first offense under subdivision (a)(1) or (a)(2) is guilty of a Class A misdemeanor. “ 750 ILCS 16/15”

This is real and it happens.  This has never happened to one of my clients, but it is a real possibility. The point is try and avoid this from happening at all costs.  Hiring an attorney can help.

Not Paying Child Support Is A Federal Misdemeanor And/Or Felony

If you live in one state and the child lives in another, the federal government can get involved and they are even more strict than Illinois.

A parent is subject to federal prosecution if he or she willfully fails to pay child support that has been ordered by a court for a child who lives in another state, if the child support payment is past due for longer than 1 year or exceeds the amount of $5,000. A violation of this law is a criminal misdemeanor, and convicted offender face fines and up to 6 months in prison (See 18 U.S.C. § 228(a)(1)).

If the child support payment is overdue for more than 2 years or the amount is in excess of $10,000 it is a federal criminal felony, and convicted offenders face fines and up to 2 years in prison (See 18 U.S.C.§ 228(a)(3)).

How Do I Avoid Going To Jail For Failure To Pay Child Support?

The easiest way to not be in violation of an order is to simply change the order.  If a co-parent finds themselves unable to pay, they can file for a motion for modification of child support.

Child support is based off of both parents’ incomes and the needs of the child(ren). So, if there has been any change in either parents’ income or in the needs of the child(ren) then a substantial change of circumstances has occurred.

A motion to modify child support is favored in an Illinois courts because it shows that the co-parent is being proactive instead of building up a massive child support arrearage which will have to be dealt with later.  Jail is not the answer – for anyone.  For you, the co-parent or the child.  Requesting a change is the best and easiest way to keep the peace and avoid jail.

Other Penalties for Nonpayment of Child Support Besides Jail

“Deadbeats most wanted list.
(a) The Director may disclose a “deadbeats most wanted list” of individuals who are in arrears in their child support obligations under an Illinois court order” 305 ILCS 5/12-12.1

No one wants to be on the internet or in the paper for anything negative.  However, the State of Illinois will publish your name as a “deadbeat parent” on their website. They’ll even include a photo of you. This will definitely come up in any google search of your name.  No one wants this.  It will likely have lasting ripple effects, namely for employment.

In addition, the Secretary of Illinois can suspend a driver’s license if they receive a report that a parent is more than 90 days delinquent. In this situation, the solution is to just admit to the arrearage and put the arrearage amount on a payment plan. The Secretary of state perceives this as being current for the purposes of reinstating a driver’s license.

To learn more about child support enforcement contact my Chicago, Illinois law firm today to speak to an experienced Illinois family law attorney.