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Contempt Of Court In Illinois Family Law Cases | Part Two

Article written by Attorney Kevin O'Flaherty
Updated on
September 4, 2020

In this article, we discuss what to do if you are on the receiving end of a contempt motion. To learn more about contempt of court in family law cases, check out part one of this article series. Below we will answer the following questions:

  • How much time do I have to respond to a motion for contempt?
  • What else should I receive with the motion for contempt?
  • What are common defenses to a contempt motion?
  • What defenses to a contempt motion will not hold up in court?
  • What happens if violating the court order is unavoidable (not my fault)?

In part one of our “contempt of court in family law cases” series, we discussed the basics of contempt motions, including when they are appropriate, the risks, and consequences. If you have been served for contempt of court you may be wondering what to do next. Many times in family law cases one party will attempt to enforce a parenting, divorce, or child support agreement, via a contempt of court motion. Contempt of court is a serious charge that can come with hefty penalties.

How Much Time Do I Have To Respond To A Motion For Contempt?

Depending on the county that your family law case resides in, the response time required for a contempt motion will vary. Your attorney should be able to let you know how much time you have, or you can call the court clerk or family law facilitator where your case resides. Some contempt hearings can be scheduled for as early as five days. In most cases, unless you get a continuance granted, you must file and serve your response within one day of the contempt hearing. You will also need to discuss with your attorney if you plan to file any other motions. If you just don’t have enough time to prepare, or for any other appropriate reason, you can respond as best as you can, and then ask for a continuance at the hearing.

What Else Should I Receive With The Motion For Contempt?

The other party is required to give you certain documents before or at the time you are served with the contempt motion. These documents include:

  • The motion and its declarations. This should tell you what portion of the agreement, or order,  the other party alleges you violated.
  • The order listing the date of the contempt hearing and your required presence.
  • The proposed resolution following the contempt hearing. This is usually a new court order.
  • A copy of the order violated. 

The Petition for Contempt is the legal document that you will be served with. This officially kicks off the motion for contempt process. If you do not receive all of the above documents with the petition, then the hearing cannot proceed and you will get a continuance.

What Are Some Defenses To A Contempt Motion?

There are many defenses to a contempt motion in a family law case. Below you will see that some of them are more general, while others will depend specifically on the issue the contempt motion references:

  • The court order is invalid because the jurisdiction in which the petition was served has no authority to act.
  • You were never served the proper legal notice in the original case.
  • There was no actual violation of the order (You will have proof of this, of course).
  • It’s not your fault that you are unable to follow the order or agreement. Examples of this would be you don’t have the funds to pay child support and have evidence to prove that you have tried to get work, earn money and save; or you could not adhere to part of the parenting agreement, such as parenting time, because it was physically impossible.
  • You didn’t know the order existed. You must be able to prove you never received the order!
  • You received the order, but were not given enough time before the hearing, or the order was not delivered properly according to the laws in your county. While this is not a permanent defense it can still buy you some time.
  • The order is ambiguous, confusing, or unrealistic. This is a common defense, but will only last until the order is modified to be more clear and concise.
  • The order actually ended and the other party is trying to hold you in contempt for a nonexistent order.

Your attorney should be able to look at your case and determine if a legitimate defense exists for your situation, or at least suggest some potential options

What Defenses To A Contempt Motion Will Not Hold Up In Court?

  • I was told by my attorney that I was not in violation of the order. This in and of itself will not work as a defense unless you have evidence to back it up.
  • You feel the original order was a mistake.
  • You and the other party agreed the order was unreasonable or that you could ignore the order. Unless you have written proof of this, it will not hold up in court.
  • You and the other party agreed that the order is just a formality and neither of you would enforce it.

What Happens If Violating The Court Order Is Unavoidable (Not My fault)?

If a judge feels that your reasons for being unable to follow the court order are justified and that you will likely have the same trouble in the future, he or she may:

  • Suggest to both parties that an amicable modification of the original order be made, so future violations are avoided;
  • Enter a judgment for money owed, and work out a payment plan that is reasonable and realistic; or
  • Order jail time. Whether you can realistically follow an order or not, if it is not modified and you continue to violate the order the judge will have no other option, then to consider jail time, if only to force you to legally obey the order.

For more information on contempt of court in family law cases, look for Part 3, where we discuss the filing process, what happens at the hearing, and what to do if the judge finds you in contempt.

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Contempt Of Court In Illinois Family Law Cases | Part Two

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