Legal News and Views

HOW IGNORING YOUR CHILD SUPPORT OBLIGATIONS WILL LEAD TO ADDITIONAL COSTS AND ATTORNEY FEES

In 1997, the Illinois legislature amended the Illinois Dissolution of Marriage Act by adding the word "compelling" to the language of the statute.

Section 5/508(b) of the Illinois Dissolution of Marriage Act provides:

In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorneys fees of the prevailing party.

The burden of proof will rest with the defending parent to prove that a compelling cause was responsible for his or her noncompliance. No Illinois court has yet defined the meaning of "compelling cause;" however, the dictionary defines compelling as:

Forcing, impelling, driving, tending to convince or convert by or as if by forcibleness of evidence.

The most common situation where such an order for costs and attorney fees will be sought involves child support. If one parent successfully seeks the enforcement of a child support order against the other in a post-dissolution proceeding, the court must award costs and attorney fees to the prevailing party.

The defaulting parent may have to bear the additional costs even if he or she had good faith justification for their noncompliance. The law requires that the parent prove that there were "compelling factors" or factors over which they had no control, as their reason for the noncompliance. These factors include sudden illness or loss of employment.

In order to avoid these additional court imposed sanctions, the defaulting parent should petition the court for relief from the original order upon the occurrence of the illness or loss of employment. Doing so may substantially reduce the risk of incurring court imposed costs and the payment of the other party's attorneys fees.

Of course 750 ILCS 5/508(b) applies to any aspect of any judgment in a divorce case. If one party violates the divorce decree or court order, he or she will be required to pay their ex-spouse's attorneys fees in the absence of proving that compelling circumstances were the cause of their noncompliance.